Sultan Singh, J.:— In this second appeal under section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as ‘the Act’) the tenant challenges the judgment and order of the Rent Control Tribunal dated 24.4.1980 passing an order an order of eviction against him.
Briefly the facts are that the respondent-landlord filed an application for eviction of the appellant under section 14(1)(b) of the Act from shop No. 361 (Old No. 25-A) Azadpur, G.T Road. Delhi. The ground of eviction pleaded in para 18 (a) of the application reads as follow:
“18. (a) The tenant-respondent has sub-let the shop and parted with the possession of the said shop to M/s. Sh. Hira Lal, Sri Bhagwan illegally and without the consent of the petitioner after 9th day of June 1952. The petitioner is the owner/landlord of the shop in question.”
The appellant in reply stated as under:
“That para No. 18 (a) of the petition is denied as stated. There is no sub-letting or parting with the possession of the shop in the tenancy of the respondent. Hira Lal was the relative of the respondent who died prior to 1958 and Shri Bhagwan is the son of the respondent. The name of the business is only in memory of the deceased relative. The possession of the shop is with the respondent. The petitionr has wrongly stated these facts in para. The petitioner is not the owner of the premises and there are other landlords besides petitioner who are the legal representatives of Shri Badloo.”
The respondent in replication has stated that Sri Bhagwan was the the son of the appellant but had been given in adoption to Shri Hira Lal and so Shri Bhagwan had no connection with the family of the appellant and the possession of the shop was not with the appellant. The Additional Rent Controller dismissed the eviction application holding that the ground of eviction under section 14(1) (b) of the Act was not proved. The Rent control Tribunal reversed the judgment of the Additional Rent controller and passed an order of eviction against the appellant holding that the appellant had parted with the possession of the premises.
The respondent claimed eviction of the appeallant on two grounds, (1) sub-letting of the premises to M/s. Hira Lal Sri Bhagwan and (2) parting with the possession of the said shop to M/s. Hira Lal Sri Bhagwan without consent after 9.6.1952 In sub-letting there should exist the relationship of landlord and tenant as tenant as between a tenant as between a tenant and his subtenant. In the present case no evidence has been pointed out to hold that there was any agreement between the appellant and M/s. Hira Lal Sri Bhagwan for payment of rent. In other words no case has been made out for eviction on the ground of sub-letting. The only contest between the parties is whether tne appellant without the consent of the respondent parted with the possession of the premises to M/s. Hira Lal Sri Bhagwan after 9.6.1952 The Tribunal held that Sri Bhagwan son of Duli Chand appellant was the adopted son of Hira Lal, a relative of the appellant and that there was parting with possession of the premises by the appellant to Sri Bhagwan without the consent of the respondent after 9.6.1952 The Additional Rent Controller on the other hand had held that the alleged adoption of Sri Bhagwan by Hira Lal was not proved, that the appellant only halped his son Sri Bhagwan to start and carry on business in the suit premises.
The learned counsel for the appellant submits that, (1) the eviction application does not disolose any cause of action and therefore, the same was liable to be rejected under Order 7 Rule 11 of the Code of Civil Procedure, (2) the alleged adoption of Sri Bhagwan by Hira Lal was not pleaded and that the plea in replication to that effect cannot be looked into, (3) Sri Bhagwan is the son of the appellant and was never adopted by Hira Lal, and (4) the finding of the Tribunal that Sri Bhagwan is the adopted son of Hira Lal is without any evidence on record and is perverse liable to be set aside in second appeal. The learned counsel for the respondent submits that the appellant never took the plea that Sri Bhagwan was a licensee, that the appellant parted with the legal possession of the shop premises, that there was no concurrent user by the appellant and Sri Bhagwan, that Sri Bhagwan was proprietor of the business Hira Lal Sri Bhagwan in shop premises in suit and he has been in possession of the same, that no snbstantial question of law arises in this second appeal. The learned couusel further submits that the Controller contrary to law inspite of objection allowed the appellant to prove Ex.R-4 dated 30.12.1.52, a certificate showing that Sri Bhagwan obtained the title of Vaidya Vishared in Ayurved in 1952. His submission is that this document was neither filed with the written statement nor included in the list of reliance, that the same was placed on record at the time when Sri Bhagwan appeared as RW-4 on 14.9.1978, that without deciding the objection of the respondent the said document was allowed to be placed on record and proved. He further submits that the respondent filed on application before the Additional Controller on 28.9.1978 seeking leave to produce additional evidence in support of his contention that Sri Bhagwan was the adopted son of Hira Lal, but his application was dismissed. He further submits that the Rent Control Tribunal also erred in law in rejecting his application for additional evidence under Order 41 Rule 27 of the Code of Civil Procedures. He therefore, submits that if Ex. R-4 is accepted on record and the Court concludes that Sri Bhagwan is not the adopted son of Hira Lal, the respondent should be granted an opportunity to lead additional evidence to rebut Ex. R-4 and to substantiate that he is the adopted son. He submits that the Controller had refused to admit the additional evidence which he ought to have admitted.
The learned counsel for the appellant submits that the eviction application does not disclose any cause of action. His contention is that the respondent pleaded that sub-letting and parting with possession was without his ‘consent’ although under sections 14(1)(b) of the Act a landlord is to plead that the act of parting with possesssion was ‘without obtaining the consent in writing’ of the landlord. He says that as the consent in writing has not been pleaded the eviction application does not disclose any cause of action. The respondent in para 18(a) has pleaded that parting with possession was without his consent. The word ‘consent’ has a wider meaning. It may be ‘in writing’ or ‘oral’. If a landlord pleads that the parting with possession was without his consent it would also include that parting with possession was without his consent in writing.
Next the learned counsel submits that the crucial question in the present case is whether Sri Bhagwan is the son of the appellant or an adopted son of Hira Lal deceased ? He says that this material fact was never pleaded in the eviction application and the plea of adoption taken in the replication cannot be looked into as replication is not a part of pleading. Under Order 6 Rule 1 of the Code of Civil Procedure ‘pleading’ means plaint or written statement. In other words replication is not a pleading. But in the present, case the plea was that M/s. Hira Lal Sri Bhagwan had been in possession of the suit premises. Duli Chand appellant was alleged to have parted with the possession of the suit premises to the said M/s. Hira Lal Sri Bhagwan. This is admitted by the appellant that the firm Hira Lal Sri Bhagwan has been in possession of the premises in suit for the last about 20 years. In fact Sri Bhagwan admits that he has been sole proprietor of the said business carried on in the suit premises. If a tenant is not in possession of the tenancy premises and a third person is admittedly in possession, it is for the tenant to explain and prove, the right of the third person, admittedly in possession of the premises, to remain in possession thereof. In the present case the question is not whether Sri Bhagwan was the adopted son of Hira Lal but the question is whether Hira Lal Sri Bhagwan had any right to remain in possession of the premises. Thus it was not necessary for the respondent to plead that Sri Bhagwan was the adopted son of Hira Lal. In fact the appellant in the written statement pleaded that Sri Bhagwan was son of the appellant and that appellant had been in possession of the premises. In reply the respondent-landlord was justified to state that Sri Bhagwan was the son of the appellant but had been given in adoption to Hira Lal. The appellant sufficiently pleaded that the respondent had parted with the possession of the premises without his consent to Hira Lal Sri Bhagwan. It cannot be said that the pleading lacks any material particular or that it does not disclose any cause of action.
The learned counsel for the appellant next submits that Sri Bhagwan is not the adopted son of Hira Lal as held by the Tribunal. His submission is that to prove adoption the ceremonies of giving and taking must be proved on record before it can be held that a child is the adopted son of another person. The question whether Sri Bhagwan was the legally adopted son of Hira Lal was a question on which no finding was necessary in an eviction suit. It was sufficient for the Tribunal to proceed on the basis that Sri Bhagwan was treated as the adopted son of Hira Lal. It was not necessary to give a finding as a fact that he was validly adopted son of Hira Lal. In Smt Krishnawati v. Shri Hans Raj, AIR 1974 S.C 280 wife was tenant in a shop and her husband used to conduct business therein. The relationship as wife and husband was disputed. The Supreme Court held that it was not necessary to determine whether the husband and wife were legally married and it was observed that if they were living as husband and wife that was sufficient for the purpose of an eviction suit. Thus I am of the view that in the instant case if Sri Bhagwan was carring on business in the suit premises as an adopted son of Hira Lal, it would be sufficient for the purpose of the present eviction proceedings to hold that as he has been sole proprietor of the business M/s. Hira Lal Sri Bhagwan and appellant had no interest in the said business, the possession of the suit premises was parted with by the appellant to Sri Bhagwan. There is sufficient evidence on record to hold that Sri Bhagwan has been treated as the adopted son of Hira Lal by various persons and authorities. The respondent appearing as AW-1 has deposed that the shop premises in suit has been in exclusive possession of Hira Lal Sri Bhagwan, and the appellant has not been in possession, that Sri Bhagwan was adopted by Hira Lal when he was aged about 6-7 years, and Sri Bhagwan had been residing with Hira Lal at 26, Sarai Pipal Thala. A clerk from the House-Tax Department of the Municipal Corporation of Delhi as AW-2 has deposed that in Corporation record house No. 26, Sarai Pipal Thala near Azadpur assessed to house-tax was entered as owned by Sri Bhagwan son of Hira Lal. Sri Bhagwan appearing as RW-4 has not denied that he was not owner of the said house. A clerk from the Office of Excise Commissioner Delhi as AW-3 has deposed that the firm M/s. Hira Lal Sri Bhagwn in 1965-66 got a licence No. L. 11 for retail sale of denatured spirit, and Sri Bhagwan son of Hira Lal was sole proprietor of the firm. Again Sri Bhagwan as RW-4 did not deny that licence for retail sale of denatured spirit was not obtained by him as son of Shri Hira Lal. Further a clerk from the Sales Tax Department as AW-4 has deposed that a licence was issued in 1968 to Sri Bhagwan son of Hira Lal resident of Sarai Pipal Thala House No. 1 Delhi with respect to premises 25-A Azadpur, Delhi for food-grains i.e the suit premises. Sri Bhagwan appearing as RW-4 has not denied the issuance of said licence. Thus from the statements of there witnesses from the Office of Municipal Corporation of Delhi, Excise Commissioner Delhi and Sale Tax Department it has been proved that in their records Sri Bhagwan has been described as son of Hira Lal. Thus it is sufficient for the purposes of eviction proceedings that Sri Bhagwan is the son of Hira Lal. Proving of adoption in a valid form is not necessary unless there is a dispute of title between the heirs of Duli Chand appellant and reversioners of Hira Lal. Such a dispute does not arise in the present litigation. The Controller has to determine whether Sri Bhagwan has any right to remain in possession of the premises. If Sri i Bhagwan belongs to another family it would mean that the appellant had parted with the possession of the shop premises and was liable to eviction as there was no plea that the said parting with possession was with the consent of the respondent-landlord or there was concurrent user, or Sri Bhagwan was a licence. I therefore hold that there is sufficient material on record to hold that Sri Bhagwan is the adopted son of Hira Lal. The learned counsel for the appellant submits that Ex. R-4 showing passing of ‘Vaidya Visharad Examination in Ayurved’ by Sri Bhagwan in 1952 describes him as son of Duli Chand Gupta that it conclusively proves that he was aged 20 years in 1952 and was the son of Duli Chand Gupta. His contention is that a child aged more than 15 years is not capable of being taken in adoption as provided in section 10 of the Hindu Adoptions and Maintenance Act, 1956. The date of birth given in Ex. R-4 is 1.4.1932 In other words in 1952 he was aged 20 years and therefore, Sri Bhagwan was not capable of being given on taken in adoption. This document was neither filed with written statement nor included in the list of reliance required to be filed under Order 8 Rule 2 of the Code of Civil Procedure. Leave was never obtained for filing the said document. It was exhibited subject to objection. It cannot be looked into. In any case snbsequent to 1952 when R-4 was issued, Sri Bhagwan has been described as son of Hira Lal in the records of Sales Tax and Excise Department. He next submits that L.I.C Policy, driving licence and scooter registration book in favour of Sri Bhagwan shows that he is the son of Duli Chand. In cross-examination Sri Bnagwan was suggested that these documents were got prepared by him after the institution of eviction proceedings. The various dates on which these documents were issued have not been placed on record by the appellant. Next the learned counsel for the appellant relies upon the voter list for the year 1975 Ex. R-1 Sri Bhagwan has been described as son of Duli Chand. The age of Sri Bhagwan has been mentioned as 39 while in 1975 he was aged 43. There is another voter list Ex. A-1 for the same year 1975 for election to Lokh Sabha wherein Sri Bhagwan has been described as son of Hira Lal. Sri Bhagwan has not deposed that he was not a resident of village Pipal Thala House No. 225/2. Thus the voter list Ex. 1-A appears to be correct although his age has been mentioned as 54. Even ignoring both voter lists, there is sufficient oral evidence ou record and other circumstances to hold that Sri Bhagwan was the adopted son of Hira Lal. The next question is what is the effect of carrying on business by Sri Bhagwan in the suit premises. It is admitted on record that firm Hira Lal Sri Bhagwan was started in 1957 by Sri Bhagwan as its sole proprietor. It is alleged that Duli Chand had invested capital in the said firm. It is admitted that the firm maintain accounts but nothing has been placed on record. There is only oral evidence regarding his capital investment. Documentry evidence available in the form of accounts book has not been produced and therefore, adverse presumption can be drawn against the appellant. The appellant has no interest in the business carried on in the suit premises. The only allegation is that the appellant as and when necessary visit the shop but it does not mean that he has been in possession of the shop. There is no plea of concurrent user of the premises by the appellant along with Sri Bhagwan. The entire business admittedly belongs to Sri Bhagwan. Appellant in fact looks after another firm under the name of Aggarwal Hardware at G.T Road, Azadpur, with his other son Lakhi Ram. The learned counsel submits that as Duli Chand has been visiting the shop as and when he felt the necessity of doing so it should be held that he is in possession and he never parted with possession. I do not agree. The appellant has no legal possession of the suit premises With him. In fact he has parted with the legal possession to Sri Bhagwan. As already stated the appellant has no interest either in the premises or in the business carried on. From the evidence inference of parting with the possession of the suit premises can be easily drawn. The respondent in his notice Ex. A-4 to the appellant alleged that he had sub-let and parted wish the possession of the suit shop to Hira Lal Sri Bhagwan without his consent. The appellant in rply dated 27-1-1976 Ex. R-3 alleged that he was in possession of the accounts book showing payment of the rent, that he was living jointly with his son Sri Bhagwan, that it was a Joint Hindu Family and there was no question of sub-letting or parting with the possession. In other words, the appellant's case was that he and Sri Bhagwan formed a Joint Hindu Family and the business was being carried on in the suit premises by him. In the written statement the appellant has pleaded that he was in possession of the shop. There was no plea of giving the premises on licence to Sri Bhagwan. There was no plea of any capital having been invested by the appellant in the said shop. In short the defendence of the appellant as disclosed in the written statement was that he was in possession of the shop. How he has been in the possession of the shop has not been disclosed in the evidence. On the contrary the evidence conclusively proves that Sri Bhagwan has been in exclusive possession of the shop carrying on business under the name and style of Hira Lal Sri Bhagwan for more than 17 year as sole proprietor. In Dr. Vijay Kumar and others v. Raghbir Singh Anokh Singh, 1973 S.G 2254 it has been held that if a father partitions the shop and gives on one portion to his son for business it amounts to parting with possession. It has been further observed that the plea that the son was occupying the portion with the permission of the father and the father had a duty to establish his son in business could not be raised if not taken in written statement. It has been further observed that no presumption can be drawn from mere relationship of father and son or from joint living and joint messing, that the son was in permissive possession of that shop. It was held that father had parted with the possession of the shop to his son. In Banta Singh v. Vishwa Nath Dogra, Halwai and another 1981 (1) Rent L.R 259, there was no plea in the written statement of the father that his son was a licensee in the suit premises. It was held that such a plea conld not be looked into. It was also held that the father had parted with the possession in fevour of his son. In Smt. Satyabhawadevi Choubey v. Ramkishore Pandey, 1975 M.P 115 it has been hold that occasional visits by tenant to his old office to trace out old references or to hely his brother lawyer in profession did not constitute concurrent user that the tenant had parted with the possession of the premises. In Narinder Kumar Madan. Madan Mohan Lal and another, 1978 (2) Rent L.R 356 the tenant ceased to carry on business in the demised premises and the business was subsequently carried on by his brother in his personal capacity, it was held that the tenant was deemed to have parted with the possession of the premises. In Gurcharan Singh and others v. V.K Kaushal, 1930 S.C 1866 the tenant initially was proprietor of the business was taken over by a partnership firm consisting of his father and brothers, The tenant was no longer proprietor or partner of the business and the tenant was having no right to possess the shop. It was held that there was sub-leting.
The learned counsel for the appellant refers to Hazari Lal and Ram Babu v. Shri Gian Ram and others. 1972 R.G.K 74 Para 10 of the judgment reads as under:
“10. Clause (b) to the proviso to sub-section (1) of section 14 of the Rent Act uses three expressions namely, “sub let”, “assigned” and “otherwise parted with the possession” of the whole or any part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with different concepts and apply to different circumstances. In sub-letting there should exist the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression “parted with the possession” undoubtedly-postulates as has been held in the cases mentioned above the parting with legal possession. As we understand it, parting with possession 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 mere user by other persons is not parting with possession so long as the tenant retains the legal possession himself or, in other words, 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. So long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration it would not be possible to say that the tenant has parted with possession even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time, he cannot be said to have parted with the possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with the possession so long as, during his absence, tenant has a right to return to the premises and be in possession thereof. A mere privilege or licence to use the whole or part of the demised premises which privilege or licence can be terminated at the sweet will and pleasure of the tenant at any time would not amount to “parting with possession”. The divestment or abondonment right to possession is necessary in order to invoke the clause of parting with possession.”
The learned counsel submits that mere user by other persons is not parting with possession so long as the tenant retains the legal possession in himself. In that case the third person was in the premises at the sweet will and pleasure of the tenant and therefore it was held that there was no parting with possession. In the instant case however the possession and business carried on in the suit premises is of Sri Bhagwan. There is nothing on the record to show that the appellant has a right to dispossess Sri Bhagwan. As a matter of fact the appellant has retained no control in himself. Next the learned counsel relies upon Abdul Hamid and another v. Nur Mohammed, A.T.R 1976 Delhi 328 wherein it has been observed that to constitute parting with possession 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 the facts and circumstances of that case it was held that there parting with the possession was not proved. As a matter of fact inference has to be drawn on the facts of a particular case to determine whether legal possession has been patted with or not. From the facts of the present case the only conclusion as discussed above and held by Tribunal is that the appellant had parted with the possession of the premises in favour of Sri Bhagwan who has been carrying on business as sole proprietor under the name and style of M/s. Hira Lal Sri Bhagwan for seventeen years.
Even if it is assumed that Sri Bhagwan is not the adopted son of Hira Lal, the only conclusion is that the appellant parted with the possession of the shop to Sri Bhagwan. The appellant has no interest in the business carried on by Sri Bhagwan. There is no plea that Sri Bhagwan was a licensee in the premises. On the contrary the appellant's plea in the written statement is that he has been in possession but there is no evidence on record to show that the appellant has been in legal possession at any time since the business was started by Sri Bhagwan more than seventeen years ago. There is no concurrent user also.
In view of the fact that the material on record is sufficient to hold that Sri Bhagwan is the adopted son of Hira Lal, it is not necessary to grant any opportunity to the respondent-landlord to produce additional evidence to rebut Ex. R-4 or in support of the plea of adoption. The learned counsel for the respondent further submits that the question involved in the present appeal was a question of fact and an inference of fact is not open to review in second appeal. There is substance in this objection. The finding of the Tribunal that the appellant had parted with the possession of the premises in favour of Sri Bhagwan is based on evidence and is not perverse. No substantial question of law is involved in this second appeal. The appeal is therefore, dismissed with no order as to costs.