ABDUL AZIZ Vs. MOHAMMAD YAKUB

JUDGEMENT

(1.) The respondent, Mohd. Yakub, is the owner of a house, bearing Municipal No. 958, situated injMohalla Kishan Gan). Delhi. Abdul Aziz, the appellant, is the tenant in the said house. The respondent-landlord filed a petition for the appellant's eviction under proviso (b) to section 14(1) of the Delhi Rent Control Act on the ground that the latter has sublet, assigned or otherwise parted with the possession of a part of the demised premises in favour of other persons without his consent. The Additional Controller dismissed the petition as he did not find the above allegations substantiated. The Rent Control Tribunal disagreed with the Additional Controller and held that Abdul Aziz and Habib Ahmed had been inducted by the appellants-tenant as sub-tenants in portions of the premises in dispute and that the possession of the said portions bad been parted with in their favour. He, therefore, ordered the appellant's eviction, Abdu) Aziz, the tenant has come up in second appeal to this court.

(2.) . The learned counsel for the appellant pointed out that the Rent Control Tribunal based its conclusions on certified copies of two birth entries of two sons of Habib Ahmed in the premises in dispute. The first is an entry, exhibit A-9, regarding the birth ofa son on 3rd January, 1961. The second is an entry, exhibit A-8. regarding the bith of a second son on December 25, 1962. The learned counsel submitted that this was a wrong approach of the Tribunal to the facts of the case as the respondent had come to the Controller on the allegation that the appellant had sublet, assigned or otherwise parted with the possession of parts of the premises to Amir Hasan, Mohd. Shafi, Abdul Rashid and Habib Ahmed, gaffer March, 1963^ without obtaining the consent in writing of the respondent. The birth of sons in 1961 or 1962, therefore, had DO relevance and the Tribunal had no justification to support its order on facts which were never the basis of the respondent's petition. He also submitted that in a previously filed ejectment application by the respondent against the appellant, a judgment (exhibit RW4/1) was passed by the then Rent Control Tribunal on March 13, 1963, where by the dismissal of the respondent's eviction application against the appellant was confirmed. It had been held that subletting had not been proved. The allegations of subletting of any portion of the premises before March 13, 1963 cannot be taken into consideration urged the counsel, as afinding negativing such allegation had been recorded by the Rent Control Tribunal. No subletting after March. 1963 having been found, the conclusions arrived at by the Tribunal rested on mere surmises and conjectures and not upon any legal testimony. He contended that the allegations of the landlord were to be Judged from the state of facts prevailing at the time when he made his claim for eviction.

(3.) . It was further submitted that the appellant was a poor man belonging to a community where feeling of fellowship were Very strong and it was not uncommon for a relation to accommodate even a distant relation for a short while during emergencies. The fact that children were born in the premises in dispute to persons, who are not members of the appellant's family would not be conclusive to prove subletting. Further, it had not been proved that any specific portion of the Louse was in the exclusive possession of either Habib Ahmed or Abdul Rashid. On the other hand, the judgment under appeal just referred to some vague evidence which could not be said to be conclusive for establishing subletting, It is, however, clear that the judgment RW 4/1 passed on March 13, 1963 did not deal with Habib Ahmed or Abdul Rashid. The landlord or any other outsider cannot be expected to know exactly who was living or staying in the house and since when. This is more so, as the appellant belongs to a community which observes strict purdah If, therefore, the case of Abdul Rashid or Habib Ahmed was not dealt with in the earlier case, it cannot debar the respondent-landlord from proving the same subletting in the present proceedings, when it escaped his notice earlier. It is significant that in January 1966, when the prevent petition was filed, the respondent-landlord was not aware of the date when Abdul Rashid and Habib Ahmed were inducted as sub-tenants. He alleged that they came in after March, 1963. It was from the statement of the appellant himself and from other evidence brought on record that it came to light that both of them had been living in the house in dispute since 1961 or 1962.