SUKHPAL SINGH Vs. SATBIR SINGH

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of India against the order dated 12.07.2011 of the Ld. District Judge-cum-ASJ Delhi, wherein an appeal preferred by the respondents, was allowed and the eviction order passed by the Ld. Rent Controller, Delhi vide order dated 25.03.2008, was set aside.

(2.) THE Petitioners are the owners/landlords of the property No. 2278/79, Gurdwara Road, Karol Bagh, New Delhi (hereinafter referred to as "the suit premises"). Shri Mahinder Singh, father of the Respondent No.1 was a tenant in respect of one shop situated in the suit premises. Shri Mahinder Singh died leaving behind two sons namely Shri Kanwaljeet Singh and Satbir Singh. The petitioners alleged that after death of Kanwaljeet, respondent No.1 alone is the tenant of demised premises. On 16.05.2005 the petitioner filed an eviction petition u/s 14(1) (b) of the Delhi Rent Control Act (hereinafter referred to as "the Act"). It was submitted in this petition that the respondent no.1 had sublet, assigned or otherwise parted with possession of the demised premises to the present Respondent no.2, M/s Meetasu Travels Pvt. Ltd., without obtaining the consent of the petitioners and on this ground, the respondents are liable to be evicted. The Ld. RC passed the eviction order on 25.03.2008 on the ground that since out of the total share capital of Respondent No 2, which was 3 lakh, 2,50,000 shares were held by one Mr. Jasbir Singh Anand and his wife, and the rest were held by the wife and sons of Mr. Kanwaljeet Singh, it was clear that the controlling interest of the company was with Jasbir Singh Anand who were outsiders vis a vis tenants. Thus, the RC concluded that this was a case of parting possession, and so eviction order was passed. The respondents filed an appeal on 02.04.2008. The District Judge allowed the appeal on the ground that the number of shares is irrelevant for deciding whether a person has a controlling interest or not. The District Judge relied on the judgment in "M/s Madras Bangalore Transport Co. (West) vs. Inder Singh, AIR 1986 SC 1564" wherein it was held that if a firm is converted into a company, it does not amount to subletting. He also referred to the judgment cited by the appellants (respondents herein) of "Vishwanath vs. Chaman Lal Khanna, 1975 RCJ 514" in which it was held that a sole proprietor converting into Pvt. Ltd., in which he had controlling interest, would not amount to sub- letting. The Ld. District Judge also made the observation that since the heirs of Kanwaljeet Singh have not been joined as a party, it is fatal to the eviction petition. This order has been challenged in the present petition.

(3.) IT is important to note that the onus of proving sub-tenancy lies on the landlord. The Supreme Court in "Jagan Nath vs. Chander Bhan, AIR 1988 SC 1362", enunciated the principles whereby once the landlord has proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts upon the tenant. Here that burden of proof has not been discharged by the petitioners. The exclusive possession by a stranger has not been proved by the petitioners. In addition to this, the rent was being paid by the tenants as usual, and Jasbir Singh Anand or his wife never paid any rent to Respondent no. 1 or to the LRs of Kanwaljeet Singh.