PREM PAL SINGH Vs. JUGAL KISHORE GUPTA

JUDGEMENT

(1.) . This is defendant's appeal in a suit filed by the plaintiff for recovery of possession against him. By impugned judgment dated 27 February 1991 the defendant was asked to vacate the property and the suit of the plaintiff was decreed. The property consist of two rooms and a bath room in the annexe of the property bearing No. C-92, Maharani-Bagh, New Delhi. The case of the plaintiff was that he was the owner of the property. There is no dispute on that. He said that be inducted the defendant in the suit premises as a licensee for a period of one year from the beginning of 1983 and thereafter on account of some tragedy in his house the defendant was allowed to continue in the premises for some more time. The present suit was filed on 30 March 1989. The defendant contested the suit on the ground that he was a tenant in the premises and the suit was barred under the provisions of the Delhi Rent Control Act, 1958. On pleadings of the parties, the following issues were framed:-

(2.) .In support of his case the plaintiff examined himself and other witness,, namely, Rajan Khanna, a neighbour. In his statement the plaintiff did say that the defendant was not his tenant and was a mere licensee and had no right to continue to remain in possession of the premises in question. As far as the plaintiff is concerned that was enough for him to prove on this issue, though the defendant could have shown that the statement was not correct and then further led evidence to show that he was in fact a tenant. Mr. Chopra, learned counsel for the appellant, has contended that the case set up by the plaintiff could not be true in the circumstances of the case in as much as when. the defendant was inducted he was given exclusive possession of the premises and the defendant is no relation of the plaintiff and in normal circumstances nobody would have given an immovable property on licence to a person like the defendant. The plaintiff had set up his case that this portion of the property was earlier with one Mr. Gill along with the first floor of the house, and from the time Mr. Gil) vacated the plaintiff came in occupation of the first floor and the suit property remained vacant. Then on the request of his friend Dr. Atma Ram he allowed one Shrikant to occupy the suit property as a licensee. The defendant used to .come to Shrikant and that is bow the plaintiff got acquainted with him. On vacating the suit premises by Shrikant the defendant approached the plaintiff and asked him to allow him to occupy the suit premises for a short duration. In this case as set up by the plaintiff, Mr. Chopra says, that this could not be true. He said that the plaintiff himself was a Professor in the University and now a pensioner and his only income was salary and the rental income. Mr. Chopra said in the circumstances the plaintiff could not have allowed the defendant to occupy the premises merely as a licensee and that too without payment of any licence fee. Mr. Chopra may appear to be correct to an extent but that is not enough. But then defendant himself has to prove his tenancy rights. Mr. Chopra has led stress on the fact that the plaintiff has not brought in the witness box Shrikant, or even Dr. Atma Ram, who is since deceased. The fact remains that the plaintiff clearly stated that be was having indifferent health and then his young and only son died in August 1984 and be was also enbroiled in litigation with his tenant in the.main building and that he, therefore, did not press hard upon the defendant to vacate and go and could not take any legal. action against him earlier. This statement of the plaintiff stands uncontroverted. The learned trial court has believed the statement of the plaintiff that the defendant was inducted as a licensee in the premises and we do not find any reason to return any different finding on that.

(3.) . As noted above, on the second issue the defendant has not led any documentary evidence except his own statement that he was the tenant He adnuts that he has no document to Show that be was a tenant in the premises. Tenancy rights are created by contract under the statute being the Transfer of Property Act and court has to be satisfied that there in fact a tenancy existed, and when landlord denies the same a mere statement of the tenant may not be enough. Mr. Chopra has also referred to a judgment of the Calcutta High Court in short note in Satinath Mukherjee v. Sailendra Nath Sen alias Aailen Sen, AIR 1991 NOC 55j (Calcutta), to contend that to prove the tenancy it is .not necessary to prove an agreement. That, of course, will depend upon the facts of each case and the evidence that may be led in a case. In the present case the defendant has been unable to prove that he had been a tenant.