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PETITIONER: SRI CHAND GUPTA

       Vs.

RESPONDENT: GULZAR SINGH AND ANR.

DATE OF JUDGMENT22/10/1991

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. YOGESHWAR DAYAL (J)

CITATION:  1992 AIR  123            1991 SCR  Supl. (1) 538  1992 SCC  (1) 143        JT 1991 (6)   532  1991 SCALE  (2)949

ACT:         Delhi    Rent     Control   Act.    1958.    Section 14(b)--Sub-letting--Eviction  Petition--Eviction  order   by Rent  Controller and Tribunal---Order based on  inadmissible evidence---Appraisal of evidence, interference with  concur- rent findings of fact and dismissal of Eviction Petition  by High Coutr hem justified. Indian Evidence Act, 1872: Section 18.     Admission--Eviction proceedings---Admission by  tenant’s brother in an affidavit before Income Tax Authorities as  to exclusive possession held not binding on the tenant.

HEADNOTE:    The appellant-landlord filed an application under Section 14(1)(b)  of the Delhi Rent Control Act, 1958 for  ejectment of  the respondents and the three courts concurrently  found that  the  respondent  was the sole tenant.  Relying  on  an affidavit  filed by tenant’s brother before Income  Tax  au- thorities  in which he claimed exclusive possession as  ten- ant, the Rent Controller and the Tribunal concluded that the admission  made by the tenant’s brother was binding  on  the tenant as a result of which sub-letting by tenant was proved and consequently allowed the landlord’s eviction petition.     But  the High Court dismissed the eviction  petition  by holding  that since the admission made by  tenant’s  brother was not binding on the tenant, the finding of sub-letting by tenant was vitiated in law because it was based on  inadmis- sible evidence.     In  appeal to this court it was contended on  behalf  of the landlord that (i) the admission made by tenant’s brother was  binding on the tenant under section 18 of the  Evidence Act;  (ii)  the  High Court erred in  interfering  with  the concurrent finding of fact.   Dismissing the appeal, this Court, 538 539     HELD: 1. Section 18 of the Evidence Act postulates  that statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circum- stances of the case, as expressly or impliedly authorised by him to make them, are admissions. Equally statement made  by a  person who has any proprietary or pecuniary  interest  in

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the  subject  matter of the proceedings  or  persons  having derivative  interest make statements during the  continuance of the interest also are admissions. [540 H, 541 A-B]     2.  In  the instant case,  admittedly,  the  respondent- tenant was not a party to the affidavit signed by his broth- er. Therefore, the admission made by his brother that he  is the  tenant in exclusive possession of the demised  premises does  not bind the respondent-tenant. Once it is found  that respondent alone is the tenant, his brother cannot claim  to have  any  pecuniary or derivative interest in  the  demised premises.  He is not an agent of his  tenant-brother.  Since the admission made by tenant’s brother was inadmissible  and not binding on the tenant, the High Court rightly held  that the finding of sob-letting or parting with possession of the premises in dispute was vitiated in law as it was  primarily based on inadmissible evidence. Consequently, it was open to the  High Court to re-examine and reappreciate the  evidence on record. [541 B-E]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 849 of 1987.     From the Judgment and Order dated 24.9.1985 of the Delhi High Court in S.A.O. (’Second Appeal From Order) no. 295  of 1981. K.R. Nagaraja, R.S. Hegde and C.B. Nath Babu for the  Appel- lant. M .L. Bhargava and Randbit Jain for the Respondents. The following Order of the Court was delivered:     The  appellant landlord had filed an  application  under Sec. 14(1)(b) of the Delhi Rent Control Act, 1958 (for short the  ’Act’) for ejectment of the respondents. All the  three courts  concurrently  found that Gulzar Singh was  the  sole tenant.  The Rent Controller and the Tribunal found that  he sublet the demised premises to Avtar Singh, his brother  and therefore  ordered ejectment. The High Court found that  the tenant  was in exclusive possession of the premises  bearing No. W.Z. 258/4, Subash Bazar, Nangal 540 Raya,  New Jail Road, New Delhi, and that he did not  sublet the  premises to Avtar Singh. On that premise  the  petition for  ejectment  was dismissed. Thus this appeal  by  special leave under Art. 136 of the Constitution. Shri  Nagaraja, learned counsel for the appellant  has  con- tended  that the High Court has committed a gross  error  in interfering with the concurrent finding of fact recorded  by the Addl. Rent Controller and the Rent control Tribunal that the tenant, Gulzar Singh has sublet the premises in question to  his brother, Avtar Singh and that it is not open to  the High court to interfere with the concurrent finding of fact. He  placed reliance on Sec. 18 of the Evidence Act and  said that in an affidavit filed by Avtar singh before  Income-Tax Authorities he claimed exclusive possession as a tenant  and that, therefore, the admission made by him would be  binding on  Gulzar  Singh. The Addl. Rent Controller  and  the  Rent Control Tribunal relying upon this admission of Avtar  Singh and other oral evidence concluded that Avtar Singh alone was in exclusive possession and that, therefore, subletting  was proved  as a fact. We find no substance in  the  contention. Section 18 of the Evidence Act. reads as under:-               "18.  Admission by party to proceeding or  his               agent; by suitor in representative  character;               by  party  interested  in  subject-matter   by

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             person  from whom interest derived.  -  State-               ments  made by a party to the proceedings,  or               by an agent to any such party, whom the  court               regards, under the circumstances of the  case,               as expressly or impliedly authorised by him to               made them, are admissions.               Statements made by parties to suits, suing  or               sued  in a representative character,  are  not               admissions,  unless they were made  while  the               party making them held that character.               Statements made by -               (1)  persons  whom  have  any  proprietary  or               pecuniary  interest in the subject  matter  of               the  proceeding and who make the statement  in               their character of persons so interested, or               (2) persons from whom the parties to the  suit               have  derived  their interest in  the  subject               matter  of the suit, are admissions,  if  they               are made during the continuance of the  inter-               est of the persons making the statement." Section 18 postulates that statements made by a party to the 541 proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the. case, as  expressly or impliedly authorised by him to make them, are admissions. Equally statement made by a person who has an proprietary or pecuniary interest in the subject matter of the  proceedings or persons having derivative interest make statements during the continuance of the interest also are admissions. In this case,   admittedly,  Gulzar  Singh  was  not  a   party   to the .affidavit signed by Avtar Singh. Therefore, the  admis- sion  made by Avtar Singh that he is the tenant m  exclusive possession  of  the demised premises does  not  bind  Gulzar Singh. In view of the plea and stand of the appellant, Avtar Singh  cannot  claim to have any pecuniary interest  or  any joint  interest alongwith Gulzar Singh in the demised  prem- ises.  Once it is found that Gulzar Singh alone is the  ten- ant,  as  admittedly pleaded by the appellant,  Avtar  Singh cannot claim to have any pecuniary or derivative interest in the  demised premises. He is not an agent of  Gulzar  Singh. Under  those  circumstances, as rightly found  by  the  High Court, that the admission made by Avtar Singh in the affida- vit  is  inadmissible and does not bind Gulzar  Singh.  Once that  admission is excluded from consideration, there is  no other evidence worth accepting to conclude that Avtar  Singh was  in  exclusive possession as a tenant.  The  High  Court rightly held that the finding of subletting or parting  with possession of the premises in dispute was vitiated in law as it  was  primarily based on  inadmissible  evidence.  Having found the finding vitiated, it was open to the High Court to re-examine  and  reappreciate  the evidence  on  record.  On reappraisal it disbelieved-the oral evidence. We do not find any  error  in  such reappraisal. It is then  sought  to  be contended  that Gulzar Singh had other business and  it  im- plies that he is not in exclusive possession of the  demised premises. We find no force in the contention. It may be that Gulzar  Singh had other business but that does not  lead  to the conclusion that Gulzar singh is not in exclusive posses- sion of the demised premises as tenant or that he sublet the premises to Avtar Singh.     Accordingly, the appeal is dismissed, but in the circum- stances, without costs. T.N.A.                                                Appeal dismissed. 542

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