JUDGMENT
Sunanda Bhandare, J.
(1) This second appeal is directed against the judgment of the Rent Control Tribunal, Delhi dated 24th February 1987 whereby the Rent Control Tribunal dismissed the appeal filed by the appellants under Section 38 of the Delhi Rent Control Act (hereinafter referred to as the Act) against the order of the Additional Rent Controller dated 18th September 1986.
(2) The respondent Shiv Charan Dass filed a petition for eviction of the appellants under Section 14(l)(a) of the Act in respect of premises bearing no. 4234, Gali Mochian, Paharganj, New Delhi let out to the appellants. Since the premises were situated in the slum area, the respondent obtained permission of the Competent Authority under Section 19(l)(a) of the Slum Areas (Improvement & Clearance Act) before filing the eviction petition before the Additional Rent Controller. It was pleaded in the eviction petition that the premises which consisted of two rooms, one kitchen, latrine, open court-yard and a Chhajja on the first floor of the above- mentioned property were let out originally to Shri Todar Mal, the father of the appellants for residential purpose On the death of Shri Todar Mal, the present appellants became tenant in the said property. There was no written document of tenancy. The agreed rent was Rs 30.00 per month. It was further averred in the eviction petition:(l) that the appellants herein had failed to pay the arrears of rent in spite of repeated demands from 1st August 1978 to 31st August 1980; and(2) that the appellants had acquired another property bearing municipal no. 1730-D.Chuna Mandi, Paharganj, New Delhi after the creation of the tenancy of the premises in dispute about four years before filing of the eviction petition. The respondent did not press the ground of non-payment of rent before the Additional Rent Controller but only pressed the ground under Section 14(l)(h) of the Act.
(3) The Additional Rent Controller came to the conclusion that the disputed premises were let out for residential purpose and the appellants having acquired another residential accommodation, they were liable, to be evicted under Section 14(l)(h) of the Act. Before the ‘Rent Control Tribunal, this order was challenged and the Rent Control Tribunal gave a concurrent finding that the letting purpose was residential and the appellants having acquired another alternative residential accommodation, the eviction of th appellants was rightly ordered.
(4) It was not disputed by the learned counsel for the appellants that the appellants have acquired another residence. However, it was contended that the suit premises were let out to Shri Todar Mal in the year 1930 for commercial cum residentia1 purpose and were being used as such by the present appellants both for commercial as well as residential purpose. The respondent had not placed any evidence on record to show that the premises were let out only for residential purpose. The onus is on the landlord to prove that the premises were let out for residential purpose and the respondent, having failed to discharge that onus, were not entitled to get the appellants evicted from the premises on the ground that the appellants had acquired another residential accommodation. It was further contended that there was no document of tenancy and the whole case of the respondent is that the father of the appellants Shri Todar Mal took the premises in question by way of an oral agreement. The premises were used for commercial purpose right from the inception of the tenancy. It was further contended that the Additional Rent Controller as well as the Rent Control Tribunal wrongly placed the whole burden on the appellants to prov.e. that the premises were let out for commercial purpose and, therefore; the finding of both the courts below is vitiated.
(5) On the other hand, it was contended by the learned counsel for the respondents that since there was no written document of tenancy, there was sufficient other circumstantial evidence placed by the respondents on record to the show that the premises in question were let out only for residential purpose. Learned counsel contended that though initial onus of proving the letting purpose is on the landlord, once he places some evidence on record, the onus shifts to the tenant and a mere statement by the tenant that the premises were let out for commercial purpose is not enough. Learned counsel further submitted that the respondent had placed on record the counter-foil of rent receipt Ext. RWI/X2 issued by the landlord and accepted by the tenant on the record which indicated that the premises were let out only for residential purpose. No question was put to the landlord in crossexamination regarding the purpose of letting Moreover, from the nature and location of the premises, it is abundantly clear that the premises can be used only for residential purpose. Learned counsel further submitted that since two courts had concurrently held that the letting purpose was residential and the appellants had acquired another residential accommodation, this Court in second appeal should not interfere with the concurrent finding of facts.
(6) This Court while dealing with a second appeal does not go into pure questions of fact and interfere with concurrent findings. However, since the record of the case was before the court, I have gone through the evidence led by the parties to ascertain whether the finding of the two courts below is based on evidence. No doubt, the burden of proving that the letting purpose was residential, was on the landlord. Since there was no written document of tenancy, the only way the landlord could prove the letting purpose was by showing other surrounding circumstances which would indicate that the premises were let out to Sh Todar Mal for residential purpose alone. The landlord has placed on record counter-foil of rent receipt issued to the tenancy Ext. PW1/X2 which clearly mentions that the premises were let out for residential purpose. The appellants have not disputed this rent receipt. Furthermore, the premises consists of two rooms, kitchen, latrine open court-yard and Chhajja on the first floor of the property Thus, the nature of the property is such that it is meant to be used for residence, particularly so because the premises were let out in 1930 because in those days the whole area was residential. It may be that now after so many years, several other premises in that are being used for commercial purpose, but that does not change the original letting purpose. The landlord has made a categorical statement that the premises were let out to Shri Todar Mal for residence and I find that no questions have been put on this point to the landlord in cross- examination, whereas the present appellant Shri Gopal Dass who is the son of Todar Mal in his statement admitted that he did not know whether the premises were let out for residential or commercial purpose. In my view, once the respondent-landlord had discharged the initial onus, the onus shifted on the tenant to prove that the letting purpose was both commercial as well as residential. The appellants have not placed on record any document or produced any evidence in that regard excepting that a bald statement is made in the written statement that it is a composite tenancy.
(7) It is true that the trial court has relied on the judgment of the Competent Authority for coming to the conclusion that the premises were let out for residential purpose and there is no such finding of the Competent Authority. However, from the record I find that though there is no observation in the judgment, the appellants have alleged in the written statement filed before the Competent Authority that the landlord wants to evict the appellants because the respondents want to convert the residential house for commercial purpose. Since there is other evidence on record which supports the finding in my opinion, this error is not of much consequence.
(8) In this view of the matter, the second appeal is dismissed. No costs.