D. P. Wadhwa, J. ( 1 ) THIS second appeal under S. 39 of the Delhi Rentcontrol Act 1958 (for short the Act ) has been filed by the Appellantsnumbering three against an order of eviction made against the first appellantwhich was confirmed in appeal by the Rent Control Tribunal, the ground ofeviction being subletting. ( 2 ) IT was on 26. 2. 1969 that M/s Phelpsandco. Pvt. Ltd. (for short the landlord company and now respondent in this appeal) filed a petitionfor eviction against five respondents of the allegation that M/s Rai and Sonspvt. Ltd. (for short the tenant company ) was the tenant in respect ofcertain portion of the ground floor and the first floor of Phelps Building inconnaught Place. New Delhi, owned by the landlord company and that thetenant company sublet various portions of the tenant premises to respondentsnos. 2 to 5 without the consent in writing of the landlord company. Outof the respondents Nos. 2 to 5, alleged to be the sub-tenants, only respondents Nos. 2 and 3 namely, M/s Associated Artists and M/s Saha and Raitravels Private Ltd. , have joined the tenant company in filing the appeal inthis court. The landlord comptey alleged that the premises were let out tothe tenant company as from 1. 11. 1955 at a monthly rent of Rs. 1. 940. 00. Thetenant company was also to pay Rs. 10. 00 per month as water charges whileelectricity charges were to be paid by it separately. It was stated that therewas no written lease deed executed by the tenant company in favour of theladdlord company. It was then alleged that this subletting or assigning orotherwise parting with possession of the premises by the tenant companywas without obtaining the consent in writing of the landlord company andthat the landlord company had come to know of the fact of subletting abouta year ago. A notice of eviction dated 11. 1. 1969 was also stated to havebeen served on the tenant company denied that there was any relationship oflandlord and tenant between the parties. It was stated that the premiseslet out to Rai Ranjit Rai ( rai for short) who, in fact, was the tenant of thelandlord company and further that the premises were occupied by only thoseconcerns with which Rai was associated. It was stated that the premiseslet out to Rai Ranjit Rai ( rai for short) who, in fact, was the tenant of thelandlord company and further that the premises were occupied by only thoseconcerns with which Rai was associated. The date of tenancy was notdisputed, but it was stated that the premises were lei out to Rai andthat this arrangement had been confirmed by means of letters exchangedbetween the parties. It was contended that it was expressly aggreedbetween the parties that Rai would have the right to use the premisesfor all such offices and concerns with which he was associated and thatthe legal possession had always been with Rai. A plea of estoppel was alsoraised on the ground that the landlord company was aware that the premiseswere being used by all the five respondents to the eviction petition. Raiwas stated to be associated with all the five respondents It is not necessaryto refer to the written statements of other respondents to the evictionpetition except to note that they also in effect supported the stand of thetenant company. Plea of acquiescene was also raised. Then the landlordcompany filed replication: It asserted the existence of the relationship oflandlord and tenant between it and the tenant company. Reference wasmade to the notice dated 1 1 1. 1969 served by the landlord company on thetenant company in which there was demand on rent and termination oftenancy, to contend that after the receipt of this notice the tenant companydid send the rent to the landlord company. It was also stated that thetenant company had been paying rent for the last about 14 years andreceipts were also being issued in its name by the landlord company. Itwas stated that during all this period it was only the tenant company whichwas recognised and accepted as tenant and that the tenant company couldnot deny its tenancy. ( 3 ) EVIDENCE in the case comprised both documentary as well as oral. In support of its case, the landlord company examined three witnesses,namely, K. S. Malik, Director (AW 1), Hari Chand Gupta, Accountant (AW 2), and Ujjal Singb, Governing Director (AW 3 ). The tenant companyexamined only one witness, namely, Hari Deva, its Secretary. Documentaryevidence brought on record is quite large. ( 4 ) BOTH the Additional Rent Controller and the Rent Control Tribunaltheir respective orders dated 21. 1. 1975 and 14. The tenant companyexamined only one witness, namely, Hari Deva, its Secretary. Documentaryevidence brought on record is quite large. ( 4 ) BOTH the Additional Rent Controller and the Rent Control Tribunaltheir respective orders dated 21. 1. 1975 and 14. 12,1978 upheld the claim ofthe landlord company that there was a relationship of landlord and tenantbetween it and the tenant company. In coming to this conclusion both ihecourts raised a presumption against the tenant company for non-productionof the relevant record of the tenant company and non-appearance of Raias a witness. The courts disbelieved (be plea of the tenant company that rentwas being paid by it on behalf of Rai or under his instructions. They wereof the view that if record of the tenant company had been produced thatwould have shown if the tenant company was the tenant of the landlordcompany and, if so, from which date. Relationship of landlord and tenantwas held to exist since 1. 11. 1955. The main plea raised by the tenantcompany was that it was not the tenant in the premises and that it was Raiwho was the tenant. It was stated before the Rent Control Tribunal by thetenant company, as would appear from the order, that if the finding of theaddl. Rent Controller that the tenant company was, in fact, the tenant wascorrect, then the ground of eviction was well made out and the order ofeviction had to be affirmed. The only question that was, therefore, beforethe Tribunal wasifthereexistedthe relationship of landlord and tenantbetween the landlord company and the tenant company. That would appearto be the question before me as well. ( 5 ) THE landlord company has brought on record a statement of rentaccount (Ex. AW 2/1) showing as from 4. 9. 1957 it is the tenant companywhich has throughout been paying rent. Bills towards rent due were raisedin the name of the tenant company. Rent was received from the tenantcompany and rent receipt were also issued in the name of the tenantcompany. This continuous conduct between the parties would perhaps showthe relationship of land lord and tenant. There are numerous letters exchangebetween the parties ( by which I mean the landlord company, the tenantcompany and Rai), the tenor of which would show that parties accepted thetenant company as the tenant in the premises. But, then the matter is not assimple as that. There are many questions that arise though it was contendedby Mr. There are numerous letters exchangebetween the parties ( by which I mean the landlord company, the tenantcompany and Rai), the tenor of which would show that parties accepted thetenant company as the tenant in the premises. But, then the matter is not assimple as that. There are many questions that arise though it was contendedby Mr. Arun Mohan on behalf of the landlord company that irrespective ofthe fact as to whin and in whose name the tenancy originated in thebeginning, the court had only to see if the relationship of landlord andtenant existed between the landlord company and the tenant company as onthe date of filing of the eviction petition. It could not be disputed thatoilginally negotiations for letting out the premises started between thelandlord company and Rai. The contention by the tenant company is thatrai acted in his own individual capacity while the landlord companycontends to the contrary. It says that Rai negotiated on behalf of thetenant company. A look at the state of affairs asit existed at the time ofnegotiations would be necessary to appreciate the rival contentions. Mark a (now an Exhibit) is the first document on the subject. It. is dated15. 4. 1955. It is an agreement to lease in respect of the first floor pottion ofthe premises measuring about 2600 sq. ft. and is between the landlordcompany and Rai. It is in the form of a letter addressed by Rai to thelandlord company setting out the terms of the lease, which have beenaccepted by the landlord company, as the endorsement at the end of thisletter would show. At that time, the building in which the premises aresituate was under construction. Thus, two parties ie , the landlord companyand Rai, agreed that the premises on the first floor would be let out at therate of Rs. 40. 00 per hundred sq. ft. for a period of five years and that twoyears rent would be paid in advance and thereafter rent would be paid inadvance every month. Rs 12,000. 00 were to be paid on the date of signingof this agreement; Rs 6,000. 00attbeendof May 1955 and the balance ofrs. 6. 000. 00 on occupation. It was stipulated that the above amount would berefundable in case possession of the premises could not be delivered by1. 7. 1955 or within areasonable time of that date. Rs 12,000. 00 were to be paid on the date of signingof this agreement; Rs 6,000. 00attbeendof May 1955 and the balance ofrs. 6. 000. 00 on occupation. It was stipulated that the above amount would berefundable in case possession of the premises could not be delivered by1. 7. 1955 or within areasonable time of that date. Finally, a lease deedwas to be executed and registered and registration charges were to be paidby the tenant. This letter is signed by Rai, but uses the expressions us, we and our at various places. This led to an argument that Rai was notwriting this letter in his individuals capacity but was acting on behalf of thetenant company. Para 6 of this letter is significant and is as under :- "you will permit the undersigned to have offices of all companieswith which he is associated". The amount of Rs. 24,000. 00 as mentioned in this letter was paid by Rai andreceipts were issued in his name by the landlord company. It will be seenthat the amount of Rs. 24,000. 00 approximates the rent of two years at therate of Rs. 1060. 00 per month. Ex. R-20 is the letter dated 1. 11. 1955 writtenby Rai to the landlord company sending therewith a cheque for the amountof Rs. 6. 000. 00 which had been agreed to be payable to the landlord companyat the time of occupation of the premises in terms of letter dated 16. 4. 1955 (mark a ). Then, there is letter Ex. R-21 which is also dated 1. 11. 1955written by Rai to the landlord company. In this Rai has referred to bisdiscussions with the landlord company which, he said, he was having forthe past five or six months pertaining to the renting out by him of showroom on the ground floor of the building in question. This letter also sets outthe terms of the arrangement. Rent was to be paid at the rate of Rs. 900. 00per month. An amount of Rs. 16. 000. 00 was also agreed to be paid by Raiwhich was to carry no interest and was to be adjusted against the rentpayable subsequently. Thereafter, rent was to be paid every month inadvance. With this letter a cheque for Rs 15,000. 00was seat. It was alsomentioned that prosecution of the show-room (ground floor) had been takenby Rai as an 1. II. 00 was also agreed to be paid by Raiwhich was to carry no interest and was to be adjusted against the rentpayable subsequently. Thereafter, rent was to be paid every month inadvance. With this letter a cheque for Rs 15,000. 00was seat. It was alsomentioned that prosecution of the show-room (ground floor) had been takenby Rai as an 1. II. 1975 Para 7 of this letter is again relevant and is asunder:- "it is agreed that you will permit me to have offices of allcompanies with which I am associated. "this letter was duly received by the landlord company. As mentioned inthis letter, the landlord company sent to Rai a receipt for having receivedthe amount of Rs. 15,000. 00 by its letter dated 1. 12. 1955 (Ex. R-6) Receipt forrs. 6,000. 00 was also similarly sent (Ex. Rs.-7 ). ( 6 ) THEN comes letter dated 25th/ 28/02/1956 written by thelandlord company to Rai enclosing therewith a draft of the lease deed inrespect of the premises taken on rent by Rai. This letter mentioned thatstamp paper be purchased and after getting the lease typed on that, thesame be sent to the landlord company for further action. Draft lease deed isquite like a proforma of a lease deed lifted from any text book on conveyancing. Only the name of the landlord company as lessor, the building in whichthe premises are situate and the area thereof, monthly rate of rent and date ofcommencement of the lease are mentioned. The draft lease is silent as to thename of the lessee, agreement regarding payment of advance rent and howit is to be adjusted, period of the lease and the schedule regarding description of the premises and the payment of monthly rent after adjustment ofthe advance rent. The Tribunal has held that the parties did sot clearlyagree in the beginning as to in whose name the tenancy was to be createdand that it appeared that Rai was given a full choice to have the tenancycither in his own name or in the name of the tenant company. He alsoobserved that when the question of making clear the name of the tenantarose with the landlord sending the draft lease deed, Rai did not think itproper to execute any lease deed showing himself to be the tenant. On9. 10. 1957 (Ex. He alsoobserved that when the question of making clear the name of the tenantarose with the landlord sending the draft lease deed, Rai did not think itproper to execute any lease deed showing himself to be the tenant. On9. 10. 1957 (Ex. R-14), the landlord company wrote aletter to Rai sendingtherewith two receipts for having received the amounts of Rs. 2500. 00 andrs. 3120. 00 which amounts were stated to have been sent by Rai by meansof cheques toward rent for the period from 1. 7. 1957 to 30. 9. 1957. Then,this letter records as under : "with reference to your enquiry regarding the light load, we arewriting to say that we were informed by the Delhi State Electricitycontrol Board that a lighting load of 0. 5 KW bad been sanctioned in the name of A. Rdi and Sons Private Ltd. and another lightingload also of 0. 5 KW had been sanctioned in the name of Sahaand Rai Private Ltd. , vide their letier No. F. 14 (ll-A)/56-E. B. dated 27/07/1956. The two receipts mentioned in the letter have not been produced. It wascontended that the two receipts were issued in the name of the tenantcompany. Statement Ex. AW2/1 would also show that the two chequestowards rent were of the tenant company. Exs. AW3/1 and AW3/2 are twoletters dated 18. 9. 1956 and 22. 10. 1956 written by the tenant company seeking information from the landlord company as to when possession of thepremises was taken over by the tenant company. After 1. 12. 1955 there is noletter written by Rai to the landlord company though the landlord companyhas been writing most of its letters to Rai and the tenant company has beenreplying to these letters. There is one set of correspondence of the years 1961exchanged beween the landlord compnay and the tenant company. By letterdated 12. 4. 1961 (Ex. A-14), the landlord company wrote to the tenantcompany that certain portion of the premises had been sublet to M/s, Sahaand Rai Travels (Private) Ltd. and M/s Associated Artists. It was pointed outthat subletting was not permitted without the consent of the landlord. The tenant company was asked to get the premises vacated from the subtenants. The tenant company replied by letter dated 18. 4. 1961 (Ex. A-9) andthe letter is signed by one Ranbir Singh on behalf of the Secretary of thetenant company. It was pointed outthat subletting was not permitted without the consent of the landlord. The tenant company was asked to get the premises vacated from the subtenants. The tenant company replied by letter dated 18. 4. 1961 (Ex. A-9) andthe letter is signed by one Ranbir Singh on behalf of the Secretary of thetenant company. It was mentioned that premises had been occupied by M/s. Saha and Rai Travels Private Ltd. and M/s Associated Artists within theframework of the tenancy entered into with the landlord company and thatthe occupation of the associates was within the konwiedge and with theconsent of the landlord company. The letter records that it was the tenantcompany which was the sole tenant of whole of the premises. The responseto this letter by the landlord company is its letter dated 5. 5. 1961 (Ex. A-15 ). It was denied that M/s Saha and Rai Travels Private Ltd. and M/s Associated Artists were sub-tenants to the knowledge of the landlord company. Thenthis letter records as under : we had asked you to be good enough to let us know the amountof rent that you are receiving from the above parties as we haveto give this information to the New Delhi Municipal Committee inconnection with our house tax assessment. Please be good enoughto sind us the particulars asked for per return. "this correspondence ended at that. ( 7 ) IF it is held that it was Rai who was the tenant, then the otherargument that there was concurrent and permissive user of the premises bythe alleged sub-tenants would become unnecessary as in that case thepetition itself would not have been maintainable. If, however, the relationship of landlord and tenant between the landlord company and the tenantcompany is established, all these arguments would have to be considered. But, then, as noted above, before the Tribunal it was conceded by theadvocate for the tenant company that if the finding of Additional Controllerwas to be affirmed that in fact it was thetenant company which was thetenant in the premises then the ground of eviction was well made out andeviction order bad then to be affirmed. Mr. Verma said that this concessionwas not correctly given. However, Mr. Arum Mohan point out that thestatement was made as the tenant company knew that there was sublettingas alleged by the landlord company. Mr. Verma said that this concessionwas not correctly given. However, Mr. Arum Mohan point out that thestatement was made as the tenant company knew that there was sublettingas alleged by the landlord company. He said the concession given could notbe withdrawn and in that connection be referred to a decision of thesupreme Court in Bank of Bihar v. Mohabir Lal and Ors. ( AIR 1964 SC 377 )which laid the following proposition : "where a statement appears in the judgment of a court thata particular thing happened or did not happen before it, it oughtnot ordinarily to be permitted to be challenged by a party unlessof course both-the parties to the litigation agree that the state-ment it wrong, or the court itself admits that the statement iserroneous. "i do not think Mr. Arun Mohan is quite correct in this submission. It is notthe case of the tenant company that no such statement was made. A statement which is made under some misconception or even misapprehensioncan certainly be allowed to be withdrawn if it can be shown that it wascontrary to the record and is not supported by facts and the law applicablethereto. This is the case here. It has not been shown to me that a statementmade or concession given in any proceedings can never be allowed to bewithdrawn. It is not that on the basis of the concession given by the tenantcompany before the Tribunal, the landlord company has changed its position to its disadvantage in any way. ( 8 ) ARGUMENTS have been addressed in detail but I think it appropriateonly to decide if relationship of landlord and tenant exists between the landlord company and the tenant company. ( 9 ) AT this stage, I propose to deal with two questions, one relating to the effect of documents Ex Mark A and Ex. R-21 not having beenregistered and, second, if the petition for eviction was barred by limitation. Mr. Arun Mohan said that documents Ex. Mark A and Ex. R-21 wereinadmissible in evidence as these were not registered as required undersec. 17 of the Registration Act 1908 (for short the Registration Act )and also under Sec. 107 of the Transfer or Property Act 1882 (for short the,t. P. Act ). Mr. Arun Mohan said that documents Ex. Mark A and Ex. R-21 wereinadmissible in evidence as these were not registered as required undersec. 17 of the Registration Act 1908 (for short the Registration Act )and also under Sec. 107 of the Transfer or Property Act 1882 (for short the,t. P. Act ). Under Sec. 2 (7) of the Registration Act, lease includes acounterpart, kabuliyat, ,an undertaking to cultivate or occupy, and an agreement to lease Sec. 4 of the T. P. Act states that the provisions contained insec. 107, r. P. Act shall be read as supplemental to the Registration Act. Sec. 105 of the T. P. Act defines lease. Under Sec. 107 thereof, a lease ofimmovable property for any term exceeding one year can be made only by aregistered instrument, and where such a lease is made by a registered instrument such instrument or where there are more instruments than one, eachsuch instrument shall be executed by both the lessor and the lessee In Mohanlal v. Gada Singh (AIR 1943 Lahore 127 (FB) ), it was observed that undersec. 107 of the T. P. Act, a lease could only be created in the manner statedin that section and a document executed by a lessee alone bad not beenspecified in that section as one of the modes by which a lease could becreated. In Trivenibai v. Smt Lilabai (AIR 1959 SC 62), it was held that theexpression "an agreement to lease" under Sec. 2 (7) of the Registration Act,covered only such agreements as created a present demise. The Supremecourt also observed that a document executed by a layman without legalassistance must be liberally construed without recourse to technical considerations. The document Ex. Mark A though an agreement to lease doesnot amount to present demise in respect of the immovable property coveredby it. It is an executory agreement. Various things have to be done by thelessor before the lease could be granted Building is yet to be completed andthere is no certain date on which possession would be handed over by thelessor, i. e. the landlord company. It is merely an agreement to grant alease in future and it does not require registration : see also Tolaram v. State of Bombay ( AIR 1954 SC 496 ). ( 10 ) AS regards Ex. R-21 it was at first staled by Mr. It is merely an agreement to grant alease in future and it does not require registration : see also Tolaram v. State of Bombay ( AIR 1954 SC 496 ). ( 10 ) AS regards Ex. R-21 it was at first staled by Mr. Arun Mohanthat this document was neither alease nor an agreement to lease. It washowever: subsequently argued by him that if it was an agreement to leaseor even a lease then it was inadmissible in evidence, it being not properlystamped as required under the Indian Stamp Act 1899, and also it beingnot registered as required under the Registration Act. It could not be anagreement to lease as by the time it was written, possession of the immovableproperty covered by it had already been taken by Rai, the author of thedocument which is in the form of a letter, is also not a lease under Sec. 107of the T. P. Act as per as the submission of Mr. Arun Mohan himself theterms had not been agreed to by the landlord company and signature onbehalf of the landlord company on this document was merely in token ofhaving received the same. This document Ex. R-21 would, therefore, in anycase, be relevant for the purpose of para 7 which has been reproducedelsewhere in this judgment. ( 11 ) TO me, however, it appears that the controversy as to whetherdocuments Ex. Mark A and Ex. R-21 would require registration is irrelevant. The controversy has been raised by the landlord company so that the courtdoes not look into para 6 of Ex. Mark A and para 7 of Ex. R-21. If thesedocuments require registration then under Sec. 49 of the Registration Act. these would not affect the immovable property comprised therein or bereceived as evidence of any transaction affecting such property though thesame could be used as evidence of any collateral transaction not requiredto be effected by a registrered instrument. Reliance was placed on a decisionof this court in Engineering Projects (India) Ltd. v. S. K. Malhotra andanother (1981 (1) R. C. R. 338) to contend that relevant paras of Ex. Marka and Ex. R-21 could not be looked into. Reliance was placed on a decisionof this court in Engineering Projects (India) Ltd. v. S. K. Malhotra andanother (1981 (1) R. C. R. 338) to contend that relevant paras of Ex. Marka and Ex. R-21 could not be looked into. The lease deed in that case required registration and since it was not registered, it was held that under Sec. 49of the Registration Act it could not be look into, and so it was held thatthe clause relating to subletting and parting with possession in the leasedeed could not have been proved on recored. This judgment may appearto help Mr. Arun Mohan in his argument, but it also appears to me that theeffect of the proviso to Sec. 49 of Registration Act was not referred toin this judgment. Under this proviso, there is no bar to leading of evidenceof any collateral transaction not required to be effected by a registeredinstrument. Under proviso (b) to sub-see, (1) of Sec. 14 of the Act, a tenantcannot sublet, assign or otherwise part with the possession of the whole orany part of the premises without obtaining the consent in writing of thelandlord. This provision has overriding effect. A Rent Controller is only tosee if there is a consent in writing of the landlord obtained by the tenantand there is no bar that when such a consent in writing is in a documentwhich is compulsorily registrable and is no registered it cannot be lookedinto. ( 12 ) TWO earlier decisions of this court on the question of admissibility of an unregistered document were not referred to in the Engineeringprojects (India) Ltd. s case. In Mis Shalimar Tar Products (1935) Ltd. v. H. C-Sharmaandors. (S. A. 0. No. 294/72, decided on 21. 9. 1973), alearnedsingle Judge (B. C. Misra, J.), took the view that both the landlord and thetenantcould show from the unregistered deed that the tenant had obtaineda written consent of the landlord to sublet the premises. In this case,thought the document required registration and was attracting the provisionsof Sec. 49 of the Registration Act, it was held to be admissible inevidence to show consent. In Pravin S Shah v. Govind K. Sharma etc. In this case,thought the document required registration and was attracting the provisionsof Sec. 49 of the Registration Act, it was held to be admissible inevidence to show consent. In Pravin S Shah v. Govind K. Sharma etc. (1974 R. L. R, 128), another learned single Judge (T. V. R. Tatachari,j. ,ashe then was) was of the view that if consent to sublet was given in anunregistered lease deed requiring registration, the clause about the consentwas not inadmissible in evidence if it could be shown that it was a writingsimpliciter and not a term of the lease. The court observed that a term givingpermission to the tenant to sublet was by itself not an essential ingredientof a lease as defined in Sec. 105 of the T. P. Act and. it had, therefore, to bepresumed that it was a separable and independent term even whenincorporated in the agreement of tenancy and, if at all, it was for the landlord to show that the term was an inseparable one. Thus whatever the viewon the question if Ex. Mark A and Ex. R-21 required registration, paras 6and 7 in this case can be looked into though I have held that these documents did not require registration. ( 13 ) IT was contended by Mr. Verma that the petition for evictionwas barred by limitation and also on account of laches and acquiescence. Provisions of proviso (b) to sub-s. (l) of S. 14 of the Act are to be read withs, 16 thereof. In the present case, subletting is alleged after the commencement of the Act. sub-s. (3) of S. 16 provides that in such a case, no tenantshall, without the previous consent in writing of the landlord, sublet thewhole or any part of the premises held by him as a tenant. Sub-s. (2) ofthis section provides that no premises which have been sublet either in wholeor in part on or after the 9th day of June 1952, without obtaining theconsent in writing of the landlord, shall be deemed to have been lawfullysublet. Proviso to sub-s (1) of S. 14 provides that the Controller may, onan application made to him by the landlord, make an order for the recoveryof possession of ibe premises on the grounds specified therein. As notedabove, in the present case, we as concerned with ground (b ). Proviso to sub-s (1) of S. 14 provides that the Controller may, onan application made to him by the landlord, make an order for the recoveryof possession of ibe premises on the grounds specified therein. As notedabove, in the present case, we as concerned with ground (b ). The questionthat arises for consideration is if an application (petition) for eviction onthe ground given in clause (b) could be filed at any time or within theperiod prescribed under the law relating to limitation under the Limitationact 1963. Reference may be made to clause (b) of the proviso which containsanother ground for seeking eviction of the tenant This clause becomesapplicable where the tenant has, whether before or after the commencementof the Act, built, acquired vacant possession of, or been allotted, a residence. The Supreme Court had occasion to consider the question of limitation ina case where an application for eviction has been filed on the ground contained in clause (b ). This was in Ganpat Ram Sharma and Ors. v. Gayatri Devi ( (1987) 3 (SCC 576 ). The court observed that the landlord must be quickin taking his action after the accrual of the cause of action, and that on thefacts of the case article 66 of the Limitation Act, which prescribed a periodof 12 years and not article 1 13 thereof, would apply because determinationof the lease by notice under Sec. 106 of the T. P. Act was no longer necessaryand that time would begin to run from the date of the knowledge of thefact that "the tenant had. . . . . . . . . built acquired vacant possession of, or beenallotted, a residence" (see paras 21,22, 23 and 24 of the judgment ). Thisjudgment was delivered on 17. 7. 1987. Earlier on 6. 5. 1987, the Supremecourt delivered judgment in Smt Shakuntala S. Tiwari v. Hem Chand M. Singhania ( (1987) 3 SCC 211 ) in a case which had been filed under thebombay Rents, Hotel and Lodging Houses Rent Control Act 1947. Thisact contemplates filing of a suit. Sec. 13 of that Act provided that a landlord could sue for eviction provided be established any one of the circumstances set out in that section. Thisact contemplates filing of a suit. Sec. 13 of that Act provided that a landlord could sue for eviction provided be established any one of the circumstances set out in that section. The grounds on which the landlord inthat case filed a suit for possession against the tenant were that the tenanthad (1) made alterations of permanent nature in respect of the demisedpremises; (2) committed acts of waste and damage; and (3) changed theuser of the premises. The Supreme Court held that aricle 67 of the Limitation Act would be applicable which provided for a period of 12 years or,in any case, it was article 66 which again provided for a period of 12 years,the cause of action arising under 67 from the date when the tenancy wasdetermined and under article 66 when the forfeiture was incurred or thecondition was broken. Earlier to filing of the suit, the landlord had givena notice to quit to the tenant. The court held that article 113, which dealtwith the period of limitation for suits for which no period of limitation wasprovided elsewhere in the Schedule to the Limitation Act and provided theperiod of limitation as three years from the date when the right to sueaccrued, would not be applicable. There is, however, a vital differencebetween the Bombay Act and the Delhi Rent Control Act. While the Bombayact contemplates filing of suit, under the Delhi Act an application foreviction in the form prescribed is to be filed. In such a cash, the periodof limitation would be three years from the time when the right to applyaccrues as provided under article 137 of the Limitation Act, which is applicable to applications for which no period of limitation is provided elsewherein the Schedule. But, then in the Kerala State Electricity Board, Trivandurmv. T. P. Kunhaliumma ( AIR 1977 SC 282 ), the Sdpreme Court held thatarticle 137 of the Limitation Act would apply to any petition or application filed under any Act to a civil court. In this case, a petition had beenfiled under Sees. 10 and 16 (5) of the Indian Telegraph Act 188 S read withsec. 51 of the Indian Electricity Act 1910 claiming compensation againstthe Kerala State Electricity Board. The petition filed before the Districtjudge. An argument was raised that petition was barred by timeunder article 137 of the Limitation Act. The court held that the Districtjudge under the Indian Telegraph Act. 10 and 16 (5) of the Indian Telegraph Act 188 S read withsec. 51 of the Indian Electricity Act 1910 claiming compensation againstthe Kerala State Electricity Board. The petition filed before the Districtjudge. An argument was raised that petition was barred by timeunder article 137 of the Limitation Act. The court held that the Districtjudge under the Indian Telegraph Act. acted as a civil court andfurther that the words "any other application" appearing under article137 would be petition or any application under any Act but that hadto be an application to a court for the reason that Sees. 4 and 5 ofthe Limitation Act spoke of expiry of prescribed period when court wasclosed and extension of prescribed period if applicant satisfied the courtthat he had sufficient cause for not making he application during suchperiod. application under Sec. 2 (b) ofthe Limitation Act includes a petition. This judgment, therefore, clearly lays down that article 137 of thelimitation Act would not apply to an application or petition filed beforethe Rent Controller under the Delhi Rent Control Act and for that matterlimitation Act would be inapplicable to proceedings under the Act. Thisjudgment is by a 3-Judge Bench of the Supreme Court. It would appear,therefore, that the view taken therein has not been followed in Ganpat Ramsharmas case (supra) which has been rendered by a 2-Judge Bench of thesupreme Court. Rent Controller is not a civil court (e. g. see Sec 50 ofthe Act which bars jurisdiction of civil courts ). If I apply the law as laidby the Supreme Court in the Kerala Stale Electricity Board s case (spura)it may have to be held that there is no period of limitation prescribed fora petition for eviction on the ground prescribed in clause (b) of proviso tosub-section (1) of Sec. 14 of the Act In the present case. however, the issueof limitation is not a pure question of law. In the petition it was said thatit was only a year before that the subletting came to the knowledge ofthe landlord company. Before me, however, it ws stated that it was inapril 1961 that the landlord company came to know of the subletting. Parties had no opportunity to lead evidence on the question of limitationand I, therefore, do not think that I should allow this question to be raisedfor the first time in this second appeal. Before me, however, it ws stated that it was inapril 1961 that the landlord company came to know of the subletting. Parties had no opportunity to lead evidence on the question of limitationand I, therefore, do not think that I should allow this question to be raisedfor the first time in this second appeal. ( 14 ) MR Verma contended the tenancy need not be created by awritten instrument only and that it could be oral as well He said basicallyfour things were required to sho-v the existence of tenancy and these being (1) the tenant, (2) the premises, (3) the rate of rent, and (4) possession of thepremises by the tenant. He said all these for conditions were satisfied inthe case of Rai. Admittedly, he said, negotiations to take the premises onrent were made by Rai. It was he who took possession of the premises on1. 11. 1955 and had paid the advance rent and also the security from hispersonal account. Receipts were issued in his name. The premises weretaken on rent by Rai and could be used for the companies with which hewas associated. In spite of there being two separate documents Ex. Marka and Ex R-21, the parties considered that there was one tenancy. Mr. Verma referred fo Sec. 109 of the Evidence Act to contend that once it wasshown that there was relationship of landlord and tenant between Rai andthe landlord company, it was for the landlord company to show that therewas no such relationship or that if there was any such relationship it ceasedto exist. In Supoprt of this plea, he referred to a decision of the Supremecourt in Harish Chanter and Ors Ghisa Ram and Am ( AIR 1981 SC 695 ). Inthis case the court, with reference to Sec. 109 of the Evidence Act, observedthat when two persons had been shown to stand to each other in the relationship of landlord and tenant, the burden of proving that such relationshiphad ceased, was no the party who so asserted. In this case, the plaintiff, ina suit for pre-emption, had contended that be was a tenant of the land. Hisname was recorded in the jamabandi as a tenant and under Sec. 44 of thepunjab Land Revenue Act 1887 a presumption of truth attaches to theentries in Jamabandi. In this case, the plaintiff, ina suit for pre-emption, had contended that be was a tenant of the land. Hisname was recorded in the jamabandi as a tenant and under Sec. 44 of thepunjab Land Revenue Act 1887 a presumption of truth attaches to theentries in Jamabandi. The Supreme Court, therefore, held that in the instantcase it could legitimately be presumed both with reference to Sec. 44 of thepunjab Land Revenue Act and Sec. 109 of the Evidence Act, that the. plaintiff continued to possess the Iced as a tenant till institution of the suit. ( 15 ) IN support of his submission that it was Rai who continued tobe the tenant, Mr. Verma strongly relied on a decision of this court invishwa Nath and another v. Chamun Lal Khanna and another (AIR 1975delhi 117) which on the question of concurrent and permissive user alsomet the approval of the Supreme Court. It is better to given the facts ofthis case in detail. Vishwa Nath had take premises on rent. After twoyears of that, he formed a limited company. After that rent was being paidby the company by pre-receipted cheques. At the reverse of the cheque areceipt was printed. The respondent landlord filed a petition for evictionmainly on ground that Vishwa Nath had sublet, assigned and parted withpossession of the permises in favour of the company. Vishwa Nath andthe company took up the plea that it was the company which was thetenant and that the ciropany was in exclusive possession and that Viswanath was the chief executive of the company. Both the Controller andthe tribunal held that the premises were let to Vishwa Nath and not tothe company and that it was Vishwa Nath and not the company who wasthe tenant and that Vishwa Nath had parted with possession of the premisesin favour of the company. In the appeal before the Tribunal, Vishwanath wanted to amend his written statement to take the plea that thepremises were taken on rent by the firm of which he was the sole proprietorand that possession of the premises was exclusively with him and thathis firm bad been converted into a private limited company which was carrying on the business in the premises. His application was disallowed on thegrounds that the amendment introduced a new case and that the applicationwas mala fide as the application had been filed after the arguments had beenconcluded before the Tribunal. His application was disallowed on thegrounds that the amendment introduced a new case and that the applicationwas mala fide as the application had been filed after the arguments had beenconcluded before the Tribunal. Vishwa Nath and the company filed secondappeal in the High Court which was allowed. This court observed that whenthe company was formed it started paying rent and pre-receipted chequeswere issued by the company and on the reverse the landlord had signedthese cheques acknowledging to have received the amount from thecompany. The court observed that on the record it was proved that the tenantwas not the company and that it was Vishwa Nath who was the tenant. Thiswas so noth with standing the admision-in the written statement that thecompany was tenant which was in possession of the premises. The courtfurther observed that the occupation of the company was merely that of alicensee and such an occupation was not necessarily exclusive and the tenanthad not completely effected himself and that he was in legal possessionand had a controlling interest in the company. The court, therefore, heldthat if an individual took the premises on rent and then converted his soleproprietorship concern into a private limited company in which he had thecontrolling interest he could not be evicted from the premises. The presonwho took the premises on rent remain-d in possession though he formed thecompnay and ceased to be the sole proprietor. He did not cease to be inpossession. He had not parted with possession with anyone. He had changedthe form of his business It was also held that so long as the lessee retainedthe legal possession of whole of the premises he did not commit a breachof law against parting with possession by allowing other people to use thesame. A tenant could not be said to part with possession of any part ofthe premises unless his agreement with the lincensee wholly ousted him fromthe legal possession of that part. Ifthere was anything in the nature of aright to concurrent user, there was no parting with possession. ( 16 ) TWO more decisions relied upon by Mr. Verma may also bereferred to. In Mis Madras Bangalore Transport Company (West) v. Indersingh and Ors. ( AIR 1986 SC 1564 ), the Supreme Court approved the decisionof this court in Vishwa Nath s case (supra ). In the case before the Supremecourt, the tenant of the premises was a firm. Verma may also bereferred to. In Mis Madras Bangalore Transport Company (West) v. Indersingh and Ors. ( AIR 1986 SC 1564 ), the Supreme Court approved the decisionof this court in Vishwa Nath s case (supra ). In the case before the Supremecourt, the tenant of the premises was a firm. The firm founded a limitedcompany with its partners as Directors. The firm allowed the company tooperate from the tenanted premises along with it The landlord filed an eviction petition against the firm on the ground b ( subletting. The court heldthat there was no subletting, assignment or parting with possession of thepremises by the firm to the limited company so as to attract the provisionsof Sec. 14 (l) (b) of the Act. The firm continued to be in occupation ofthe premises even after the private limited company came in. The firmnever effected itself and even though the firm and the company were distinctlegal entities there was no subletting or assignment. In Karam Chand Thaparand Brs. (CS) Ltd. v. Prem Kumar Khullar and Ors. (28 (1985) D. L. T. 159),the premises were taken on rent by the appellant company for the residenceof its general manager, one Mr. Gupta. Certain correspondence between thelandlord and Oupta was brought on record to show that the landlord treatedgupta as his tenant, received rent from him and issued him receipts in hisname. Gupta had, however, left the employment of the appellant company. In the eviction petition, the appellant company was asked to deposit rentunder an order under Sec. 15 of the Act. The appellant company appealedand contended that Gupta was the tenant. This court observed that underthe lease deed it was the appellant company which had taken the premisesthough for the residence of Gupta and in these circumstances if the landlordadderssed letters to Gupta and issued receipts to him it could not be saidthat the earlier tenancy had been terminated or, in fact, the tenancy hadbeen granted in favour of Gupta. ( 17 ) ON the question that there was a concurrent finding of both thecourts below that it was the tenant company which was the tenant and thatthis finding could not be disturbed in second appeal, Mr. Verma submittedthat the finding was not supported by evidence on record and was, in fact,arrived at by misreading of the evidence and non-consideration of materialevidence. He said the courts applied wrong principles of law. Verma submittedthat the finding was not supported by evidence on record and was, in fact,arrived at by misreading of the evidence and non-consideration of materialevidence. He said the courts applied wrong principles of law. He referred toa decision of the Supreme Court in Dipak Banerjee v. Smt. Lilavatichakroborty (JT 1987 (3) SC 454) where the court observed that if theessential ingredients necessary for finding of a fact had not, in fact, beenfound by the courts below, the Supreme Court was bound to examine thequestion whether injustice or wrong was done. The court held that it wasunable to sustain the findings of the High Court and the courts below on thebasis of the pleadings and evidence as the findings bad been arrived atwithout the basic facts and, therefore, could not be sustained. ( 18 ) REFERENCE was also made to another decision of the Supremecourt in Sheodhari Rai and Ors. v. Suraj Prasad Singh and Ors. (AIR 1954sc 758) where the Supreme Court held, on the facts of that case, thatpayment of rent did not establish relationship of landlord and tenant andthat payments might only prove permissive occupation not amounting to anyright or title to possession. ( 19 ) MR. Arun Moban, however, said that Rai was merely acting asan agent of the tenant company. He put his plea in the following words :-"my case is that Rai came to me and he said that he was takingthe premises on rent for his company and that be would let meknow the name of the company. Rai happened to be the managingdirector of the tenant company in whose name and for whosebenefit the tenancy was taken. The amount of Rs. 39,000. 00 paidby Rai was adjusted in the account of the tenant company and notin the account of Rai and thereafter continuously for all these yearsbills for rent were raised by the landlord company in the name ofthe tenant company which paid the rent and receipts were given inthe name of the tenant company under the directions of Rai". It will thus be seen that it is not the case of the landlord company thatpremises were originally taken on rent by Rai and that he either abandonedthe tenancy or surrendered the same even impliedly in favour of the tenantcompany. ( 20 ) IN his turn, Mr. It will thus be seen that it is not the case of the landlord company thatpremises were originally taken on rent by Rai and that he either abandonedthe tenancy or surrendered the same even impliedly in favour of the tenantcompany. ( 20 ) IN his turn, Mr. Arun Mohan strongly relied on a decision ofthis court in Devi Dayal Metal Industries (P) Ltd. v. Girnari Devi (24 (1983) D. L. T. 355 ). This decision I must set out in detail. Certainpremises were let out by respondent Girnari Devi to three persons called aggarwals for a period of ten years. One of the terms of the lease deedwas that Aggarwals were authorised to assign the demised premises for theuse of any of the companies in which they or any of them was a Director orfor the use of any of the firms in which they or any of them was a partner. Much before the lease agreement, the appellant company had been incorporated and two of the Aggarwals were the Directors therein. The landladyfiled a petition for eviction against the appellant on the ground that itbad sublet, assigned or otherwise parted with possession of the premisesin favour of two different companies. It was contended by the appellantthat the tenants were Aggarwals and that one or more of the Aggarwalswere also Dhectors in the two companies to whom the premises werealleged to have been sublet etc. Earlier, However, in reply to a noticefrom the landlady, the appellant did state that the premises were in theirname. The Rent Controller held that the rent had always been paid by theappellant and correspondence between the parties showed that the appellantwas the tenant. He also held that on the date of the application for eviction,aggarwals were not the tenants and that in any case they had assigned theirrights in favour of the appellant and, therefore, there was a relationship oflandlord and tenant between the parties. He also came to the conclusionthat the appellant had parted with possession of the premises without theconsent of the landlady as the appellant being a juristic person haddelivered possession to two other companies which werealso juristic persons. Appellant s appeal to the Tribunal was dismissed and then the second appealwas filed in the High Court. The High Court found that the lease agreement between the landlady and Aggarwals required registration but wasnot registered. Appellant s appeal to the Tribunal was dismissed and then the second appealwas filed in the High Court. The High Court found that the lease agreement between the landlady and Aggarwals required registration but wasnot registered. It referred to findings of courts below that relationship oflandlord and tenant existed between the company and the respondentlandlady and not between Aggarwals and the respondent landlady. It furtherreferred to the finding that the original agreement of lease between thelandlady and the appellant company had not been acted upon and that thatfinding was based upon the fact that the company had been paying rentfrom the inception of the tenancy and that the company did not deny thetenancy in reply to the notice of the landlady. There was no rent receiptin favour of Aggarwals, The two companies to whom the premises weresublet were paying rent and that showed subletting and parting withpossession. It was contended before the High Court by the appellantcompany that the unregistered instrument showed that the Aggarwals werethe tenants and they had permission to assign the demised premises asabove-mentioned and that the appellant company and the company towhom the premises were stated to have been sublet were having one ortwo Directors put of the Aggarwals and they. could, therefore, use thepremises and that would not make the appellant company as the tenant. Thecourt also noted the other argument that under the lease agreement it werethe Aggarwals who were to deliver the premises to the landlady on theexpiry of the lease which showed that Aggarwals continued to be the tenants. This court, however, negatived all these contentions and held that theseterms could not be read into evidence as the instrument was not registered. It was also observed that according to the recitals the lessee includedpermitted assigns and there had been an absolute assignment of tenancy infavour of the appellant company and that if that was so, the appellantcompany had the obligation to deliver the demised premises to the landlady. The court also observed that it had not been possible for the appellantcompany to dislodge its admission that it was the tenant and was payingrent. In these circumstances, the court also held that Aggarwals were notnecessary parties to the application for eviction. The court also observed that it had not been possible for the appellantcompany to dislodge its admission that it was the tenant and was payingrent. In these circumstances, the court also held that Aggarwals were notnecessary parties to the application for eviction. ( 21 ) MR Arun Mohan also raised the plea of estoppel as containedin S. 115 of the Evidence Act and he said the tenant company was estoppedfrom saying that it was Rai and not it, who was the tenant. According tohim, S. 109 of the Evidence Act was inapplicable which merely incorporatedthe concept of burden of proof and was in contradistinction to Ss. 112, 113and 114 of the Evidence Act. He also referred to S. ll of the Evidenceact. Mr. Arun Mohan said that it was not the case of the tenant companythat it was paying rent on behalf of Rai and so it could not contend thatrai was the tenant. * He said court was only to see as to who was the tenanton the date of filing of the petition for eviction and that there was noprinciple of law which said that when continuously for a number of yearsa person had been occupying the premises, paying rent and getting receipts. could he say that he was not the tenant. Mr. Arun Mohan queried if thelandlord company filed such a petition against Rai would the tenantcompany not come up with the plea that it was the tenant and had been soaccepted by the landlord company. On the question of burden of proof. reference was made to a decision of the Supreme Court in Gopal Krishnajikelkar v. Mohamed Haji Latif and Ors. ( AIR 1968 SC 1413 ) In this case. thecourt observed as under :- "even if the burden of proof does not lie on party the Court maydraw an adverse inference if he withholds important documents inhis possession which can throw light on the facts at issue. It isnot, in our opinion, a sound practice for those desiring to relyupon a certain state of facts to withhold from the Court the bestevidence which is in their possession which could throw light uponthe issues in controversy and to rely upon the abstract doctrine ofonus of proof". ( 22 ) THEN, Mr. It isnot, in our opinion, a sound practice for those desiring to relyupon a certain state of facts to withhold from the Court the bestevidence which is in their possession which could throw light uponthe issues in controversy and to rely upon the abstract doctrine ofonus of proof". ( 22 ) THEN, Mr. Arun Mohan contended that subsequent conduct ofthe parties was relevant to show that Rai acted as a mere agent of the tenant company for the purpose of taking the premises on rent for the tenant company as he happened to be managing director and would bedeemed to have that agency In support of his submission, he referred to adecision of the Supreme Court in the Godhra Electricity Co. Ltd. and Am. v. The State of Gujarat and another ( AIR 1975 SC 32 ), where the Supremecourt, following its earlier decision, observed that extrinsic evidence todetermine the effect of an instrument was permissible where there remaineda doubt as to its true meaning and evidence of the acts done under it wasa guide to the intention of the parties, particularly, when acts were done factthat the shortly after the date of the instrument. Mr. Arun Mohan also saidthat the tenant company had throughout paid the rent was a strong circumstance to show that the tenancy was created in favour of the tenant company. Lastly, again his argument was that as long as a relationship of landlord andtenant between the tenant company and the landlord company was establishat any point of time prior to filing of the petition for eviction, it wassufficient for the maintainability of the petition. ( 23 ) QUITE a few judgments were also cited by Mr. Arun Mohan forthe proposition that payment of rent was the normal incidence of tenancyand that in the second appeal concurrent findings of fact could not bedisturbed, notably being Rajbir Kaur and Anr. v. M/s. S. Chokesiriand Co. (1988 (2) R C. J. 316 ). ( 24 ) THERE is nothing in documents Ex. Mark A and Ex. R-21 to showthat the premises were taken on rent by the tenant company or by Rai forand on behalf of the tenant company. The expressions we , us in Ex. Mark A would only show that Rai would have offices in the premises, of thecompanies with which be was associated. Para 6 in Ex. Mark A and- para 7in Ex. R-21 to showthat the premises were taken on rent by the tenant company or by Rai forand on behalf of the tenant company. The expressions we , us in Ex. Mark A would only show that Rai would have offices in the premises, of thecompanies with which be was associated. Para 6 in Ex. Mark A and- para 7in Ex. R-21 did not contemplate that such companies with which Rai wasassociated would use the space free and Rai would not getproportionaterent paid by them. It could well be that in that context the tenant companystarted paying rent and was also getting contributions from other companies. Statement of Hari Deva (RW 1), Secretary of the tenant company, wouldshow that Rai was associated with all the respondents in the evictionpetition and this, in fact, was the plea in the written statement as well. Onemust not also forget that documents Ex Mark A and Ex. R-21 are draftedby a layman. In spite of these two documents of different dates respectingthe first and the ground floors of the premises and stipulating different ratesof rent,the parties were in agreement that there was one tenancy. Possessionof the premises was talken by Rai. Advance rent totalling Rs. 39,000. 00was paid by Rai and receipts issued in his name As far back as 1957, thelandlord company knew that Saha and Rai Travels Private Limited werein the premises, and in 1961 it knew the presence of Associated Artists in thepremises. The landlord company is also having its offices in the premises. Even in the notice sent by the landlord company, before filing the petitionfor eviction, there is no mention that there was any subletting. All thisperiod the landlord company did not raise any objection as to the user ofthe premises by the companies with which Rai was associated. It is notthat Rai obliterated from the scene. ,. He was very much there. There isno document to show, at least prior to 195/, that the premises weretaken on rent by the tenant company or on its behalf by Rai. Para6 ofex. Markaandpara7of Ex R-21 are quite significant and these givea valuable right to Rai which would also show that it was Rai whowas the tenant. If it was the tenant, company which was the tenant,than these terms would look redundant. Statement of account (Ex. AW 2/1)filed by the landlord company shows that as from 4. 9. Para6 ofex. Markaandpara7of Ex R-21 are quite significant and these givea valuable right to Rai which would also show that it was Rai whowas the tenant. If it was the tenant, company which was the tenant,than these terms would look redundant. Statement of account (Ex. AW 2/1)filed by the landlord company shows that as from 4. 9. 1957 and continuouslythereafter the rent was being paid by the tenant company. As to whatwas the position before this date, no document has been brought onrecord by the landlord company. Now, on the submission of the landlordcompany the Tribunal held that when draft lease was sent, the choice ofthe name of the tenant was left with Rai If the landlord company itselfwas not sure as to who vas the tenant, at least till the time the draft leasewas sent. how could it be said that it was the tenant company which was thetenant from the beginning and yet the choice was left with Rai to fill in thename of any tenant he so chose. An argument was raised that even if it wasassumed that it was Rai who was the tenant in the beginning there wasimplied surrender by him and that thereafter the tenant company becamethe tenant. No such plea was raised earlier and in spite of there being a clearaverment in the written statement the landlord stuck to its stand that it wasthe tenant company which took the premises on rent from 1. II. 1955. Theplea of surrender is not plea which is based merely on law and I did notpermit it to be raised in the second appeal. Thus, once it is shown that itwas Rai who was the tenant, the burden was on the landlord company toshow that relationship ceased to exist, but then, as noted above, it was notits plea and could not be allowed to be taken. Courts below have raised apresumption agai-nst the tenant company for non-production of its books ofaccount and non-examination of Rai as its witness. But, then the landlordcompany has also not shown from its books as to how the advance rent paidby Rai was adjusted in its books in the initial stages and was there anyresolution of the landlord company to give the premises on rent to thetenant company and, if so, when any suph resolution was passed. But, then the landlordcompany has also not shown from its books as to how the advance rent paidby Rai was adjusted in its books in the initial stages and was there anyresolution of the landlord company to give the premises on rent to thetenant company and, if so, when any suph resolution was passed. ( 25 ) IN the present case, I am of the view that the courts below whilearriving at the concinsioa that it was the tenant company which was thetenant did not apply correct principles of law and did not advert to thebasic facts from which to draw such a conclusion. Their finding therefore isvitiated and can be challenged in second appeal. Facts, in the present case,are somewhat more similar to those in the case of Vishwa Nath and another (supra) and the principles laid therein would, therefore, apply. The decisionin Devi Dayal Metal Industries (P) Ltd. s case (supra) is quite distinguishable. ( 26 ) MR. Arun Mohan wanted me to examine Ex. AW 2/1 (an extractfrom rent account) from March 1970 backwards upto September 1957 tosee that consistently during all this period rent had been paid by the tenantcompany. But that would not be the correct approach. This document doesnot show the relationship as existed prior to September 1957 and as to howthe tenancy in the first instance originated in favour of the tenant company. Terms as contained in Ex. Mark A have been accepted by the landlordcompany and though the endorsement by the landlord company on Ex. R-21shows that the document was received by the landlord company but subsequent conduct and the letter, Ex. R-1 would clearly show that the termsof the document Ex. R-11 we re accepted by the landlord company. Again,if J may say so. considering the conduct of negotiations between Rai andthe landlord company, the existence of documents Ex. Mark A andex. R-21,possession of the premises having been taken by Rai, payment ofadvance rent by Rai and receipts for that having been issued by thelandlord company to Rai and the letter sending the draft lease deed to Raiand even the letter Ex. R-14 of the landlord company which is dated9. 10. Mark A andex. R-21,possession of the premises having been taken by Rai, payment ofadvance rent by Rai and receipts for that having been issued by thelandlord company to Rai and the letter sending the draft lease deed to Raiand even the letter Ex. R-14 of the landlord company which is dated9. 10. 1957 and mentions that load of electricity had been sanctioned in thename of Rai and Sons Pvt. Ltd. (the name of the tenant company) and M/ssaha and Rai Travels Private Limited, only one conclusion is possible thatit was Rai who originally took the premises on renl Correspondencebetween the tenant company and the landlord company which has beenbrought on record and particularly the documents Exs. AW 3/. , AW 3/2and A-9, which have been mentioned above, and continuous payment ofrent would no doubt show that at some stage both the landlord and thetenant company considered that there was a relationship of landlord andtenant between them, but at what point of time this relationship came intoexistence there is nothing on record to indicate. It is not the case of landlordcompany that there was any such relationship between it and Rai and thatrelationship was at any time determined or that Rai surrendered his tenancyinfavour of the tenant company. Any such pleaat this stage will haveto be negatived. In the face of the record showing that originally thepremises were taken on rent by Rai and which record has not been considered by the courts below, it is difficult to accept the proposition that thetenant company is estopped from questioning the relationship of landlordand tenant existing between it and the landlord company on the date offiling of the petition. I do not think that in the circumstances of the presentcase the plea of estoppel as contained in S. 115 of the Evidence Act wouldapply. Under S. 114 of the Evidence Act, the court may presume theexistence of any fact which it thinks likely to have happened, regard beinghad to the common course of natural events, human conduct and publicand private business, in their relation to the facts of the particular case. Under illustration (g) to this section, the court may presume that evidencewhich could be and is not produced would, if produced, be unfavourable tothe person who withholds it. Under illustration (g) to this section, the court may presume that evidencewhich could be and is not produced would, if produced, be unfavourable tothe person who withholds it. This presumption, to my mind, can be raisedagainst the tenant company, but cannot be raised against Rai himself whois not a party in the proceedings. His being the managing director of thetenant company would not make any difference. ( 27 ) TAKING into consideration the various principles set out above,i would hold that there is no relationship of landlord and tenant between-the landlord company and the tenant company. Accordingly, this appeal isallowed, and the eviction petition filed by the landlord company M/s Phelpsand Co. Pvt. Ltd. is dismissed. There will, however, be no order as to costs.