^• % 1 . yi * IN THE HIGH COURT OF DELHI AT NEW DELHI + RENT CONTROL - SECOND APPEAL NO. 27 OF 2002 . & C.MAppl. 116 of 2002. % Date of Decision: November 30. 2004 * HARBANS LAL MEHRA DECEASED Appellant THROUGH LRS. I Through Ms. Valshalee Mehra Advocate versus $RAMESHWARNATH&ANR Respondents DECEASED THROUGH LRS. A Through Mr. Suresh Gupta Adv. With Mr. Lalit Gupta, Advocates. CORAM: * HON'BLE MR. JUSTICE R.S. SODHI 1.WhetherReportersoflocalpapers maybe allowedto seethe Judgment? 2. To be referred to the Reporter or not? ^ 3. Whether theJudgment 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 short 'Tribunal,) in RCA NO. 980/1996 whereby the learned V (RC-SA27/20021 [page1of91 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. Signature Not Verified 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: "The facts giving rise to the present appeal are that the appellant preferred a petition for eviction Impleading Smt. Tara Devi as tenant/respondent and Harbans Lai Mehra (since deceased) as sub/tenant/respondent. It was 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 let to the husband of Smt. Tara Devi by the predecessor ofthe 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 (sincedeceased)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 followinggrounds 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 writingofthe 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| the room on the groimd floor out of the tenanted premises to the respondent No.2 even without the written consent of the petitioner's father as wdll as the petitioner at aigr time on or after 9.6.1952. n (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 than six months immediately before the date of filing the present petition. There is no other member in the family of the 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. The aforesaid petition was contested by the respondent nO.2. Respondent No.2 filed the writen statement in answer to the aforesaid paragraphs as follows: 18(l)(i) That para No.18(1)® of tiie petition is wrong and is denied. It is Incorrect to say and allege that respondent No.l ever sublet, assigned or parted with possession of the premises to this respondent. As already submitted and clarlfled this respondent is a tenant In respect of the premises under the petitioner ever since February, 1952. The petitioner has not turned dishonest. He wanted this respondent to increase the rent to Rs.75/- per month to which this respondent refused point blank and hence this false and frivolous petition against this respondenttakingbenefitofthe non-issueof rent receipts. (ii) Para No. 18(a)(ll) of the petition is wrong and denied. It is Incorrect that the premises were let out for residential purposes alone. IRC-SA27/20021 (page3 of 91 As a matter of fact, the premises were let out for residential cum commercial purposes and were always used for twin purposes and were always used for twin purposes. Smt. Tara Devi vacated the portion of the premises In her tenancy to the petitioner after accepting a handsome pugree from him. She has colluded with Hie petitioner to cause hann and loss to this petitioner. Respondent No.l never resided in the portion of the property in possession and ocupation of this respondent or a tenant of the petitioner which portion has always been in possession and occupation of this respondent ever since February, 1952. (iii) Para No.l 18(a)(iii) of the petition is wrong and denied. It is however, correct that respondent NO.l has vacated her portionD^ch was in her actual possession and occupation as a co-tenant to reside in Ashok Vihar. This respondent cannot be evicted because he is a tenant of the petitioner and there is no groiind of eviction available agjalnst him." Respondent No.l did not contest the petition. It is ^ stated and also subsequently admitted in the f"^ evidence of the respondent N0.2 that the portion of the tenanted accommodation which was in 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. 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 of9] •S3 O 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 in 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. 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 "vrasrequired 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) himselfbeing a tenant in his ownright. Counsel also contends that 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 of9] -'j; 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 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 tmder 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 earlierJudgment 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 Court, that a Hi^ Court, on second appeal, cannot go into questions of fact, however, erroneous the findings of fact recorded by the Courts of fact may be. It is not necessary to cite those decisions indeed, the learned Counsel for the 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 IRC-SA 27/20021 (page 6 of 91 i€. h fact/ Coun^l also reliedupon anotherJudgmentofthe Supreme CourtIn Kondiba Dagabu Kadam vs. Savitribai Sopan Guiar Ors .TT 1999 (3)SC 163, where the Court has held as under: "5. It Is not within the domain of the High Court to investigate the grounds on laiilch the findlngis were arrived at, by the last court of fact, being the first appellate court. It Is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even ^ere It has rejected the witnesses accepted by the trial court, the same is no ground for Interference In second appeal when it is foundthat the appellatecourthas ^vensatisfactory reasons for doing so. In a case where from a ^ven set of cdrcumstances two Inferraces are possible, 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 court unless it is found that the conclusions drawn by the lower appellate court 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." 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-SA27/20021 , (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 KanhaiyaLai was his tenant In the premises in question and the appellant has come into [RC-SA27/20021 (page8 of9| . 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 ^