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Case Number

S.A.O No. 101 of 1981

Attorney(S)

For the Petitioners: Mr. Adarsh Dial, Advocate with Mr. Sanat Kumar, Advocate.
Mr. Brijbans Kishore, Sr. Advocate, with Mr. D.N Raizada, Advocate.

Judges

M.L Jain, J.

Acts

SECTION 14 DELHI RENT CONTROL ACT 1958
Order 11 Rules 12 and 14 CPC

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Smart Summary

Structured Summary of the Opinion (M.L. Jain, J.)

Factual and Procedural Background

The landlord, Kampa Wati, owned the first-floor premises No. 148-E, Kamla Nagar, Delhi (two rooms). The property was let in 1961 to Chander Kishore Sharma at a rent of Rs. 55 per month. The landlady filed an eviction petition on 2-11-1976 alleging default in payment of rent; at the time of filing rent arrears amounted to Rs. 490. On 14-2-1977 the landlady applied to amend the petition, and an amended petition was filed on 12-4-1977 adding a further ground: that the tenant had sublet, assigned or otherwise parted with possession of one room in favour of his son, Chander Parkash (respondent No. 2), who was said to be carrying on a watch-repairing business in the name of Sheelak Watch Co. and charging Rs. 50 per month.

Respondent No. 2 (the son) did not appear at early proceedings; respondent No. 1 (the tenant) filed a written statement denying arrears and denying subletting/assignment/parting with possession and denying any connection between his son and Sheelak Watch Co.

The Additional Controller, by order dated 31-5-1979, directed deposit of arrears under Clause (a) of the proviso to Section 14(1) of the Delhi Rent Control Act, 1958 (from 1-6-1975 to date at Rs.55 per month) within one month and allowed adjustment of amounts already paid; compliance would be deemed to amount to availing benefit of Section 14(2). The Additional Controller rejected the ground under Clause (b) (subletting/parting with possession) as lacking evidence of subletting; he concluded the son worked as a family member and there was no parting with legal possession.

On appeal to the Rent Control Tribunal the Tribunal did not challenge the Addl. Controller's direction on arrears (Clause (a)) but accepted the landlady's appeal on Clause (b) and directed eviction, relying on evidence it found established that the son was functioning from the premises as proprietor of Sheelak Watch Co. and that the tenant had, in effect, parted with possession of one room. The landlady later contended non-compliance with the Addl. Controller's order; that separate issue was dealt with by this Court in S.A.O. 311/81 on 6-5-1983.

The present matter is a second appeal to this Court against the Tribunal's finding on ground (b) (parting with possession to the son).

Legal Issues Presented

Whether the tenant had sublet, assigned or otherwise parted with possession of part of the demised premises in favour of his son (i.e., whether ground (b) of the proviso to Section 14(1) of the Delhi Rent Control Act, 1958 is made out).
Whether the findings of fact recorded by the Rent Control Tribunal on ground (b) raise a substantial question of law permitting interference in a second appeal (i.e., whether the Tribunal’s factual conclusion can be sustained as a matter of law).

Arguments of the Parties

Landlady's (Appellant's) Arguments

The son (Chander Parkash) was operating Sheelak Watch Co. from the disputed premises and was the proprietor of that business.
Evidence included the testimony of the landlady’s attorney (Sultan Singh, AW 1) that one room had been sublet to the son.
The tenant had, contrary to his written statement, admitted that Sheelak Watch Co. belonged to his son and that the company's address was the property in dispute.
There was documentary and circumstantial evidence: the son issued multiple cheques in the landlady’s name (cheques of Rs. 400, 100, 150, 250 etc.), which were drawn on the account of Sheelak Watch Co.; the son had a bank account (closed April 1977); the son’s name ceased to appear on the ration card from 1977. From the amounts and pattern of cheques (multiples of Rs. 50) an inference of a sub-lease at Rs. 50 per month could be drawn.
The landlady had applied under Order 11 Rules 12 and 14 CPC to compel production of cheque-books and pay-in-slips to prove the company’s account, but that application was rejected; had it been granted, it would have strengthened her case.

Tenant's (Respondent No. 1) and Son's (Respondent No. 2) Arguments

The tenant denied the arrears and denied subletting, assignment or parting with possession to his son; he maintained the son was a member of his family and had no independent connection with Sheelak Watch Co. in the tenanted premises.
The son (Chander Parkash) admitted doing watch-repairing business earlier but maintained he had since left and was settled in Poona; he deposed he had issued some cheques in the landlady’s name. He gave inconsistent statements about when he left (father said 4-5 months earlier; son said some four years earlier).
The tenant argued that payments or assistance by the son (including giving cheques via the father) are consistent with family support and do not prove a sub-tenancy or transfer of legal possession.
The tenant pointed out that the burden of proof to establish subletting/parting with possession lies on the landlord; the tenant cannot be required to prove a negative (i.e., that there was no separate business or separate possession by the son).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dr. Vijay Kumar v. Raghbir Singh, 1973 R.L.R (SC) 587	There is no presumption from mere family relationship or joint living that one has permissive possession of a part; factual pleadings cannot be converted into legal pleas in the absence of supporting facts. Strong and cogent facts required to infer parting with possession.	The court relied on this decision to emphasize that father‑son relationship or joint use does not, without cogent facts, establish subletting or parting with possession; it applied the principle to reject the Tribunal’s inference from familial association and business usage alone.
Giloo Mal v. Risa Singh, 1982 RLR (Note 35)	Second appeal jurisdiction: where findings are pure findings of fact, the High Court generally cannot upset them in a second appeal even if they may be wrong.	The court acknowledged this principle but explained that the present appeal raised a substantial question of law allowing interference despite the normally exclusive protection accorded to findings of fact.
Gauri Shanker v. Hindustan Trust & Others, 1972 RLR (SC) 87	Support for the proposition that proper findings of fact should not be disturbed in appeal (as submitted by counsel for respondent).	The court noted the submission based on this authority but concluded the present case did raise a substantial question of law justifying interference.
Smt. Krishnawati v. Shri Hans Raj, AIR 1974 SC 280	Where two persons (e.g., husband and wife) live together and one allows the other to carry on a business in a part, it is rash to infer that the part has been let out absent other evidence.	Used to support the proposition that familial cohabitation and joint use do not amount to letting out or parting with possession without other evidence; applied to discredit inferences drawn from family living.
Hazari Lal & Others v. Giasi Ram & Others, ILR (1971) I Delhi 347	Mere user by another person is not parting with possession as long as the tenant retains legal possession; there must be vesting of possession in another person by divesting both physical and legal/right to possession.	Relied upon to require evidence of divesting both physical and legal possession before holding there is subletting or parting with possession; court found such vesting not proved here.
Abdu' Hamid & Another v. Nur Mohd., ILR (1976) II Delhi 250	Co‑occupation by family members does not, without more, show actual subletting or that the tenant legally precluded himself from claiming back possession.	Applied to reinforce that family living together is insufficient to infer subletting or transfer of legal possession to a family member.
Madhavlal v. Smt. Govindi Bai, 1971 RCJ 384	Even where tenant helps a relative set up a business (nephew in that case), absence of evidence of joint funds or independent control may mean the relative is not a sub‑tenant and there was no parting with possession.	Used to illustrate examples where courts declined to infer subletting from business activity by a relative; applied analogously to the present fact pattern.
Govindi Khera v. Padma Bhatia, AIR 1972 Delhi 239	When a parent of the tenant lives in the premises as a member of the family, no question of subletting or parting with possession by the tenant arises.	Applied to support the conclusion that the son’s living/working in the premises as a family member did not, without more, establish subletting or parting with possession.
Nanakchand v. Sansarchand & Another, 1982 (2) RLR 76	In cases of close familial relationship, no inference of subletting or parting with possession should be drawn absent clear evidence.	Invoked to strengthen the general rule that close family ties preclude easy inference of parting with possession; applied to the facts here to reject the Tribunal’s conclusion.

Court's Reasoning and Analysis

The Court set out the factual matrix and the procedural posture: the Additional Controller's order on arrears (Clause (a)) stood unchallenged on the present point, while the Tribunal had accepted ground (b) and directed eviction. The central legal scrutiny was whether the Tribunal's factual findings on parting with possession to the son were sustainable as a matter of law and whether they raised a substantial question of law permitting interference in a second appeal.

The Court analysed the nature and sufficiency of the evidence relied upon by the Tribunal:

It observed that several authorities establish the settled principle that mere family relationship, joint living or joint use of premises does not, without cogent and strong evidence, justify an inference of subletting, assignment or parting with legal possession. The Court reviewed and relied on authorities (including Dr. Vijay Kumar, Smt. Krishnawati, Hazari Lal, Abdu' Hamid, Madhavlal, Govindi Khera and Nanakchand) to articulate this legal standard.
The Court noted that evidence relied on by the Tribunal included testimony that the son ran a watch-repairing business from the premises, cheques issued in the landlady's name drawn on the son's company's account, and the son's bank account and ration card status; also the landlady's attorney's testimony.
However, the Court emphasized that such evidence — payments by the son, a bank account, the son's issuing cheques, or absence from a ration card — does not of itself prove a demise of immovable property or an unequivocal vesting of legal possession in the son. The Court underlined that the burden to prove the ground of eviction is on the landlord, and the tenant cannot be compelled to prove a negative.
On the tenant's inconsistent statements and the son’s ex parte status, the Court considered these matters and concluded they did not supply the cogent factual foundation required to infer that the father had divested himself of legal possession in favour of the son.
Applying the precedents, the Court concluded that the facts proved did not advance the landlord’s case to the degree necessary to establish subletting or parting with possession. Consequently, the Court found that the Tribunal's finding on ground (b) was not sustainable.
Although the general rule is that findings of fact are not to be disturbed in a second appeal (Giloo Mal), the Court found that this matter raised a substantial question of law (because of misapplication of legal principles relating to family occupation and parting with possession), thereby justifying interference.

Holding and Implications

Holding:

The appeal is accepted; the order under appeal is set aside and the eviction petition is dismissed. No costs.

Implications:

Direct effect: The eviction order previously made by the Rent Control Tribunal (on the ground that the tenant had sublet/parted with possession in favour of his son) is overturned; the eviction petition is dismissed and the tenant retains his rights under the tenancy.
Legal significance: The Court applied and reiterated settled principles from prior authorities that mere family living, business activity by a family member in the premises, or payments by a family member do not, without cogent supporting facts showing divestment of legal possession, amount to subletting or parting with possession. The decision applies those principles to the facts of the case, but the opinion does not purport to lay down a new legal principle beyond the authorities cited.
On precedent and future cases: The Court intervened in a second appeal on the basis that a substantial question of law arose from the Tribunal's treatment of familial occupation evidence; however, the Court did not indicate that it was creating new law—rather it corrected an application of existing authorities to the facts.

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Chander Kishore Sharma & Another v. Kampa Wati .

M.L Jain, J.:— Kampa Wati is the owner of the property in dispute, namely, first floor in premises No. 148-E, Kamla Nagar, Delhi, comprising two rooms. The property was let to Chander Kishore Sharma in 1961 on a rent of Rs. 55/- per month. The landlady filed an eviction petition on the grounds of default in payment of rent on 2-11-1976. It was alleged that the tenant had not paid the arrears of rent despite notice of demand. At the time the petition was filed, rent of Rs. 490/- was in arrears. On 14-2-1977, she applied for amendment of the petition. The amended petition was filed on 12-4-1977. She pleaded an additional ground that the tenant had sublet, assigned or otherwise parted with possession of one room in favour of his son Chander Parkash, respondent No. 2, who is carrying on the watch repairing business in the name of Sheelak Watch Co. which was also added as a party. He is charging from him Rs. 50/- p.m Respondent No. 2 did hot appear, while respondent No. 1 filed a written statement denying the arrears of rent, He denied that he sublet, assigned or otherwise parted with possession of the premises in favour of his son. He also pleaded that his son had no connection with Sheelak Watch Company nor was any such company run by him in the property in dispute.

2. The learned Addl. Controller by his order dated 31-5-1979, in respect of arrears of rent under Clause (a) of the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act, 1958 (the Act) directed the tenant to deposit the same with effect from 1-6-1975 up-to-date at the rate of Rs, 55/- per month within one month. He further directed that the tenant will be entitled to adjust the amount already paid. If the tenant complied with the order he would be deemed to have availed of the benefit of Section 14(2) of the Act and the eviction petition should stand satisfied. If the tenant failed to comply with the order, an order for recovery of the suit premises shall be deemed to have been passed in favour of the landlady and against the tenant.

3. With regard to ground under Clause (b) of the aforesaid proviso, the Addl. Controller held that Chander Parkash was proprietor of Sheelak Watch Co. but he worked in the premises as a member of the family and no question of parting with legal possession in his favour could arise. There was no evidence about subletting as between father and son. The eviction petition was filed on 2-11-1976. In that, the petitioner did not invoke this ground and even not was unable to give the date of parting with possession. This ground was, therefore, rejected.

4. On appeal before the Rent Control Tribunal the findings of the Addl. Controller with respect to the ground of eviction under Clause (a) were not challenged. Rather, it was separately contended by the landlady that the order of the Addl. Controller was not complied with which proceedings were finally disposed of by this court on 6-5-1983 in S.A.O 311/81.

5. With regard to ground (b) the Tribunal accepted the appeal and directed eviction. The learned Tribunal noted that the attorney of the landlady, one Sultan Singh (AW 1) deposed that appellant No. 1 was the tenant and he had sublet one of the rooms to his son. Contrary to his own written statement, the tenant admitted that Sheelak Watch Co. was his sons and the said company had an account in a Bank in Chawri Bazar. The address of the company was also the property in dispute. Chander Parkash (RW 3): deposed that he was doing the business of watches which he has since left and he is now settled in Poona. He stated that he had issued some cheques in the name of the landlady. The learned Tribunal, therefore, held that Chander Parkash was the proprietor of Sheelak Watch Co. There is no such presumption that there can be no subletting or parting with possession or assignment of possession by the father in favour of the son. It relied upon Dr. Vijay Kumar v. Raghbir Singh, 1973 R.L.R (SC) 587. The learned Tribunal further proceeded to remark that appellant No. 1 pleaded complete denial but he failed to prove what he pleaded. The learned Tribunal found that Chander Parkash was very much functioning from the property in question and believed the landlady that in one of the two rooms son of the tenant was carrying on an independent business of repairs of watches. It hold that the plea put up by the tenant was false. It further held that it was a case of parting with possession. Hence, this second appeal.

6. An appeal to this court lies only on a substantial question of law. Where the findings are pure findings of fact, the High Court cannot upset them in second appeal even if they be wrong: Giloo Mal v. Risa Singh, 1982 RLR (Note 35) Shri Brijbans Kishore has submitted that the findings of the Tribunal are not only findings of fact but are proper and cannot be disturbed: Gauri Shanker v. Hindustan trust & others, 1972 RLR (SC) 87. Yet, upon a reading of the judgment of the court below, it appears to me that it does raise a substantial question of law and it is a case in which interference by this Court is called for.

7. In Dr. Vijay Kumar's case (supra), father was a tenant in a shop which was partitioned. In one portion the father was running a clinic. In the other portion the business of sale and purchase of motor parts was being carried on by his sons. The Rent Controller and the Tribunal and the High Court agreeing with them found that it was a case of parting with possession. An agreement was made in the Supreme Court that as a father it was natural for him to establish his son and, therefore, he permitted them to occupy a portion of the shop. The Supreme Court considered it a plausible argument, but were not prepared to entertain it for the first time in the Special Leave Petition as it was not a pleading of law, but a pleading of fact. No presumption could be drawn from mere relationship of father and son or from joint living and joint messing that the sons were in permissive possession of the half portion. It is true that there is no presumption in law that a father or a son can never sublet, assign or otherwise part with possession of the tenanted premises in favour of the other. But it will be disastrous to hold that because the parent or progeny of the tenant lives or carries on business in the tenanted premises one must presume that there is some kind of parting with possession. Such an approach is not permitted by few, unless there are facts which unequivocally compel one to do so. The accepted way of life in this country is that a father and a son are normally expected to live together, earn together and spend their separate earnings for each other and the family. Cogent and strong facts are required to displace this life style. For these observations I wilt draw support from Smt Krishnawati v. Shri Hans Raj, AIR 1974 SC 280, wherein the Supreme Court held that if two parsons live together in a house a husband and wife and if one of them who owns the house allows the other to carry on business in a part of it, it will be, in the absence of any other evidence a rash inference to draw that the owner has let out that part of the premises. In Hazari Lal & others v. Giasi Ram & others, ILR (1971) I Delhi 347, it has been laid down that mere user by the other person 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. In Abdu’ Hamid & another v. Nur Mohd., ILR (1976) II Delhi 250, tenant had been living together with his younger brother and other members of his family in the demised premises. He also rented another premises, leaving his younger brother in the previous premises. It was held that there was nothing to show in such a case either that there was actual subletting by one another to the other or that the brother tenant had legally precluded himself from claiming back possession of the demised premises so as to amount to parting with possession. In Madhavlal v. Smt. Govindi Bai, 1971 RCJ 384, the tenant constructed ‘Thala’, that is a raised platform adjacent to the shop which had been leased out to him with the main shop, for putting up a betel shop for his nephew. Even though there was no evidence of joint funds in the betel shop, the court held that it must be accepted that the nephew was not a sub-tenant of the tenant and that he had not parted with possession of the while or any part of the premises in question. In Govindi Khera v. Padma Bhatia, AIR 1972 Delhi 239, the father of the tenant was living in the premises as a member of the family. It was held that no question of subletting, assignment or parting with possession by the tenant arises in such a case. As a matter of fact, in case of close relationship, no inference could be drawn of sub-letting or of parting with possession; Nanakchand v. Sansarchand and another, 1982 (2) RLR 76. Here in this case, it is difficult to support the finding that the father had sublet or assigned the premises or parted with possession thereof in favour of the son.

8. Shri Brijbans Kishore defended the judgment of the Tribunal and pointed to the circumstances which supported its findings. His first contention is that the proceedings against Chander Parkasn were ex-parte. He deposed that he had been running a watch repairing shop 4-5 years back in a part of the premises and had given cheques to the landlady in 1970-1971 towards rent He gave 5-6 cheques, some of Rs. 400/-, 100/-, 150/- and 250/- in her name. These cheques were of Sheelak Watch Co. He gave the cheques to his father who gave them to the landlady. He had an account in the Bank which was closed in April, 1977. His name also ceased to appear in the ration card with effect from 1977. It is contended that rent was Rs. 55/- per month, but the amount of the cheques issued by the son were multiples of Rs. 50/- and, therefore, an inference has to be drawn that the father has sublet the premises to his son upon rent at the rate of Rs. 50/- per month. The son did not produce the Bank record. In order to prove her contention, the landlady had applied under Order 11 Rules 12 and 14 CPC to direct the tenant to discover on oath and produce in court cheque-books of the Central Bank of India in respect of the account of Sheelak Watch Co. and various pay-in-slips, but her application was unfortunately rejected. I think, this record if produce would only show that Sheelak Watch Co. existed or not But nothing would turn upon this because the existence of such a business and payment by cheques are admitted. It was next contended that no ration card prior to 1977 was produced and it should be inferred that the son had a separate business and lived apart from the father. To my mind want of such proof hardly will prove anything. If the son contributed a part of the rent, he did so not because a part of the premises had been made over to him, but it is a normal happening in an affectionate family that the dutiful son ever so does and the father does accept such help with delight and satisfaction as a marke of son's ability to shoulder the burden both in his life time and after. I am, therefore, not prepared to say that the payment of rent in full or part, large or small, or the absence of a ration card should lead one to think that the son lived in complete independence and the father had parted with possession of the premises. In this connection Shri Kishore also pointed out that there was no unanimity of thought between the father and the son. Father said that the son left the premises 4-5 months before, while the son said that he did so some four years back. How does this discrepancy matter? It certainly does not prove that the son was an independent sub-lease of the father.

9. It was then contended that the evidence of the tenant was rightly rejected being against the pleadings. It is no doubt the law that if a party gives evidence beyond the pleadings, no amount of such evidence can be looked into. Ordinarily, nothing which is not pleaded can be proved. The tenant pleaded that the son had no connection with Sheelak Watch Co. and no such company was ever him by him. But in his statement he reversed the stand. What then can be held against him is that he has not been able to prove that no watch company was there and that his son did not run such a shop. But, how does it mean that Sheelak Watch Co. was an entity separate from the family? One must remember that the initial burden to prove the ground of eviction is on the landlord and not on the tenant. Tenant cannot be asked to prove the negative. He has failed to disprove what the landlady has proved, but even the facts proved by her do not advance her case. Since the son was a member of the family it is not possible to hold that the legal possession was parted with by the father in favour of the son. He has categorically stated that the son was living with him since the inception of the tenancy as a member of the family and that he never sublet, assigned or transferred the portion of the premises to his son.

10. Lastly, it was submitted that the memo of parties in the present appeal, shows that the father and the son both have appealed and it was further proof that they were separate. To my mind, it only shows that their stakes are common and joint. Therefore, nothing turns upon the memo of the parties.

11. It appears to me that it is not a case of subletting because no demise of immovable property as distinct from permissive possession has been proved: vide Smt. Krishnawati (supra). It was also not a case of assigning or of parting with possession. The findings of the learned Tribunal, therefore call for interference.

12. Consequently, I accept this appeal, set aside the order under appeal and dismiss the eviction petition. No costs.

Chander Kishore Sharma & Another v. Kampa Wati .

Structured Summary of the Opinion (M.L. Jain, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Landlady's (Appellant's) Arguments

Tenant's (Respondent No. 1) and Son's (Respondent No. 2) Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Chander Kishore Sharma & Another v. Kampa Wati .

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