S.K. Kapur, J.

This is an appeal under Section 39 of the Delhi Rent Control Act, 1958, against the judgment of the Rent Control Tribunal Delhi, dated the 22nd October, 1964. Both the Courts below came to the conclusion that the appellant tenant had parted with possession of a part of the premises in favour of Anand Sarup, his sister’s husband and ordered his ejectment.

2. Briefly stated the facts are that the appellant under rent note Exhibit A. 2 rented the premises in dispute being No. D-4, Kirti Nagar, Najafgarh Road, New Delhi, from Anand Sarup Landlord at a monthly rent of Rs. 300. The landlord filed a petition for ejectment inter alia, on the ground that the tenant had sublet, assigned or otherwise parted with the possession of a part of the premises in favour of Anand Sarup his sister’s husband and Surinder Lal Chaudhri, his younger brother, without the consent of the landlord. In the written statement filed by the tenant it was stated that there was no unauthorized occupant in the premises in dispute and Surinder Lal Chaudhri, his brother, and Anand Sarup his brother-in-law, had been living there since the commencement of the tenancy. On these pleadings evidence was led by the parties. Anand Sarup the brother-in-law of the tenant appeared as R. W. I. and stated that he was practising as an Advocate in Jullundur till 6/6/1960 and shifted to Delhi where he started practice on 7th June, 1960. His wife had been staying with the tenant since 20th April, 1960. He further stated that the entire rent was being paid by the tenant and he did not pay anything. He however, admitted that for convenience he had kept one room with him which he and his family used as a separate bedroom. He further stated that the drawing room was being used jointly with the tenant and his younger brother. Shrimati Sushil Kumari, sister of the tenant and wife of Anand Sarup (R. W. I.) also appeared as R. W. 2 and deposed that neither she nor her husband was paying any rent to the tenant. She denied that the tenant had sublet any part of the premises to them but admitted that one bedroom was being used exclusively for her family. She further stated that she was having a joint mess with her brother and though she was not paying any fixed amount to him she did spend about Rs. 300 to Rs. 400 per mensem on various consumable items purchased for the house. More or less to the same effect is of Surinder Lal Chaudhari (R. W. 3), the younger brother of the tenant. He said that except the bedrooms they were using the entire property jointly. The Landlord appearing as his own witness as A.W. 1. inter alia stated that Anand Sarup, brother-in-law of the tenant, was in exclusive possession of a particular part of the house and had his separate mess. The evidence of the landlord shows that his allegation about subletting or parting with the possession was based more on his inference from the fact that persons other than the tenant were living in the house than from any personal knowledge. On the basis of the aforesaid evidence both the Rent Controller and the Rent Control Tribunal, came to the conclusion that Surinder Lal Chaudhari, the younger brother of the appellant-tenant, was a member of the family and, therefore, his living with the tenant did not constitute any subletting or parting with the possession. Regarding Anand Sarup, it was held that there was subletting or parting with possession of a part of the premises in his favour. The Tribunal dealt with the matter thus:—

‘‘The married sister of the appellant (G. D. Chaudhari), her four children and her husband Anand Sarup R. W. I. are not the members of the family of the appellant. He cannot be treated to-be living there as a guest. Barring the bald statements of the appellant and his other witnesses there is no proof to show that they are joint in mess and that the expenses are borne by the appellant alone. I cannot persuade myself to believe that the appellant is maintaining his brother-in-law Anand Sarup, his wife and four children in these days of high prices. Anand Sarup is in exclusive possession of a portion of his house since the year 1960. Anand Sarup R. W. I. has no separate office for working as a lawyer and he does his professional work also in the suit premises. Surinder Lal Chaudhari R.W.3 is unmarried younger brother of appellant and he may be considered to be a member of his family, but it is definitely proved that portion of these premises has been sublet or parted with possession in favour of Anand Sarup and his family members....”

3. Mr. S. N. Chopra, the learned Counsel for the appellant, has raised following contentions:—

(1) There is no finding by the Rent Control Tribunal that any part of the premises had been sublet. No doubt, the Tribunal generally observed that the premises had been sublet or its possession parted with but it had not come to a definite conclusion that any interest in the property had been created in favour of Anand Sarup and consequently there could be no question of subletting.

(2) The evidence led on behalf of the tenant clearly established that were all sharing the house but the legal possession continued with the tenant and even giving an exclusive licence to use a bed-room could not constitute parting with possession. So long as the tenant retained the legal possession of the premises he could not be said to have committed a breach of law against parting with the possession.

(3) The evidence of the respondent did not show that legal possession of the premises had been parted with in favour of Anand Sarup and on the other hand, the evidence on behalf of the tenant clearly established that the legal possession of the entire premises continued with the tenant. Merely because a bedroom which by its very nature must be used exclusively was in the possession of Anand Sarup, it could not lead to the conclusion that possession had been parted with; and

(4) The onus was on the landlord to bring his case within four corners of Section 14 and he had led no evidence to show that even with respect to the bedroom, there was anything more than mere concurrent user.

He has relied on the judgment of their Lordships of the Supreme Court in Associated Hotels Of India Ltd v. R.N Kapoor., AIR 1959 SC 1962 submits that merely because exclusive possession of a part of the premises had been given that was not a conclusive proof of the existence of sub-tenancy or of parting with possession. Mr. Hardy, the learned Counsel for the respondent, on the other hand submits that—

(a) No substantial question of law arises in the case and even if the inference of fact drawn by the Tribunal from facts be wrong this Court cannot in exercise of the power under Section 39 of the said Act interfere in the matter since the appeal is limited only to substantial questions of law.

(b) On the evidence on the record the Courts below could come to the conclusion that there was parting with the possession and this Court has no jurisdiction to interfere with the finding of fact even if it be erroneous; and

(c) Even if the onus to prove that there had been subletting or parting with the possession be on the landlord he had discharged the burden by showing that a part of the premises was in exclusive possession of persons other than the tenant.

4. According to Mr. Hardy, not proof of exclusive possession raises a presumption in favour of subletting or parting with the possession. The Courts below have come to a positive conclusion that the tenant has failed to rebut that presumption. They have disbelieved the entire evidence of the tenant and drawn an inference of fact that legal possession had been parted with.

5. Since there has been a lot of discussion about the ambit and scope of the two expressions “sublet” and “parted with the possession” it is necessary to say a few words about the same. Section 14 authorises ejectment of a tenant inter alia on the ground that the tenant has sublet, assigned or otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. It is not disputed that the finding that there was no consent is unassailable. Mr. Hardy has pressed on me to hold that whenever exclusive possession is given even to a licensee it would amount to parting with the possession within the meaning of Section 14. Mr S.N. Chopra, on the other hand, contends that so long as the legal possession of the premises continues with the tenant there can be neither subletting nor parting with the possession. I am of the opinion that so long as the lessee retains the legal possession of the whole of the premises he does not commit a breach of law against parting with the possession by allowing other people to use the same. I am supported in this view by Jackson v. Simons, (1923) 1 Ch.D 373. Romer, J. held:

“The defendant moreover retained the legal possession of the whole of the premises at all material times and, as pointed out by Romer J. in Peebles v. Crosthwaite, 3 TLR 37 a lessee who retains such possession does not commit a breach of a convenant against parting with possession by allowing other people to use the premises.............”

It was there held that a mere sharing the possession did not amount to parting with the possession. It is said that if that be the position then why did the Legislature choose to use two different expressions namely “subletting” or “parting with the possession”. The answer is furnished again by Romer, J. in the same decision when he says:

“Further, if the landlord has a convenient against both assigning and underletting the tenant might by an agreement, neither assigning nor underletting, put another person in possession of the premises, and parting with the possession in that manner would not be a breach those convenants.”

In any view a tenant cannot be said to part with the possession of any part of the premises unless his agreement with his licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user there is no parting with possession. Retention of a key may be a negative indictum but nothing short of a complete exclusion of the grantor or licensor from the legal possession for all purposes amounts to a parting with possession. Even a licence may give the licensee so exclusive right to the legal possession as to amount to a parting with possession. It appears to be in view of the above that the Legislature chose to use the said two expressions. In Associated Hotels case Subba Rao, J. observed :

“The following propositions may, therefore, be taken as well-established. (1) To ascertain whether a document creats a license. the substance of the document must be preferred to the form ; (2) the real test is the intention of the parties whether they intend to create a lease or a licence ; (3) if the document creates an interest in the property, it is a lease, but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property prima facie he is considered to be a tenant but circumstances may be established which negative the intention to create a lease.”

6. What then is the position in this case ? The landlord did establish that Anand Sarup was in exclusive possession of a part of the premises. In view of the presumption arising there from it was for the tenant to establish that notwithstanding the grant of exclusive possession the legal possession continued with the tenant. The Rent Control Tribunal declined to place any reliance on the evidence of the tenant and draw an inference of fact that the legal possession had been parted with Mr. Chopra, “Look at the finding of the Tribunal which show that the approach of the Rent Control Tribunal is wrong. It has based its judgment on incorrect appreciation of the legal principles governing the matter.” He further says that the Rent Control Tribunal has drawn an inference against the tenant because of:

(a) Exclusive possession of a bed room being with Anand Sarup ; and

(b) absense of reliable evidence showing that they are joint in mess and the expenses are borne by the tenant alone.

According to Mr. Chopra, even if they are not joint in mess and the expenses are not borne by the tenant alone still that may not lead to the conclusion that the legal possession had been parted with and that there was no finding about any parting with of legal possession by the tenant. In my view there is no force in this contention. Once a presumption arises in favour of the landlord from the grant of exclusive possession it would be for the tenant to rebut the same. If the evidence of the tenant is disbelived there would be nothing left to rebut that presumption. From the evidence the Tribunal has found that Anand Sarup was not living there as a mere guest. From the presumption in favour of the landlord and the above finding the Tribunal could have legitimately come to the conclusion that there was a parting with possession. That still remains an inference of fact drawn from the facts and it is not open to me to review the same in is appeal.

7. In the result, the appeal must fail and is dismissed but there will be no order as to costs. Tenant will have five months time to vacate provided he pays compensation for occupation regularly.

Appeal dismissed.