HARVANSH KUMARI Vs. J P SEHGAL

JUDGEMENT

(1.) This second appeal under section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as 'the Act'), has been filed by the legal representatives of the landlord against the appellate judgment of the Rent Control Tribunal, dated J 0th September, 1970, by which the Tribunal has dismissed the appeal and affirmed the order of the Additional Controller dated 27th July, 1968, finally refusing the petition of the landlord for eviction of the respondent tenant on the ground of unlawful subletting, but for different reasons.

(2.) The material facts of the case are that the first respondent before me is a tenant in respect of premises in dispute situated in Connaught Place, New Delhi. On or about 25th October. 1961 the first respondent entered into a parnership with respondent No. 2 (copy Ex. RW5/1). On 12th June, 1963 the landlord, who was the predecessor-in-interest of the appellants, instituted a petition for eviction against respondent No. 1 in which respondent No. 2 was also impleaded on the ground of unlawful subletting specified in clause (b) of the proviso to sub-section (1) of section 14 of the Act. It was alleged in the petition that respondent No. 1 had sublet, assigned or otherwise parted with possession of the premises in dispute in favour of respondent No. 2 after 1952 without the permission of the landlord. The petition was contested and the first respondent in reply to paragraph 18(a) of the petition urged that respondent No. 2 was a firm of the first respondent and was not a sub-tenant and it had no interest whatever in the tenancy or the premises and that the firm did not have any legal personality apart from its partners and no rent was being paid or agreed to be charged by the first respondent from the said firm and no possession of any part of the premises had been given or held by the partners of the firm other than the first respondent. In other words, the case of subletting was denied, but it was averred that there was a partnership between the first respondent and the socond respondent. On this controversy, the parties proceeded to trial and Mr. S.R. Goel, Additional Controller, found that the partnership evidenced by Ex. RW5/1 was genuine and so the landlord had tailed to prove the breach of clause (b) of the material proviso and be dismissed the petition for eviction.

(3.) Feeling aggrieved, the legal representatives of the landlord (who died during the pendency of the proceedings before the Additional Controller), appealed to the Tribunal. The Tribunal reversed the finding of the Additional Controller that a genuine partnership had been proved, but after considering the material on record came to the conclusion that the first respondent had failed to prove that he was a partner of the second respondent and it, therefore, reversed the finding with regard to genuineness of the partnership Having done that, the Tribunal applied its mind to the case as to whether the landlords had succeeded in proving the breach of clause (b) of the relevant proviso. The Tribunal observed ; "what has to be seen in each case is whether a tenant has totally effected himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee." On examination of the evidence, it found that it had no reason to disbelieve the evidence of the respondent tenant on the point and in any case the evidence produced by the appellants was not in any way better than the evidence produced by the respondents and the onus being on the appellants, they must fail. Accordingly, it held that the appellants had failed to prove that respondent No. 1 had sublet, assigned or otherwise parted with possession of a portion of the premises in dispute in favour of respondent No. 2. As a result, it dismissed the appeal and affirmed the decision of the Additional Controller.