JUDGMENT
Sanjay Kishan Kaul, J.
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1. The respondents filed an eviction petition against the appellants as far back as in the year 1983 in respect of premises bearing No. E-46/2, Hauz Khas, New Delhi on the grounds under Section 14(1)(a), (b) & (1) of the Delhi Rent Control Act, 1958 (hereinafter referred to as the said Act). The respondents alleged that appellant No. 1 herein was a tenant in the shop, which had been sub-let, assigned or otherwise parted with possession to appellant No. 2 without the consent of the respondents/landlord. Appellant No. 1 was alleged to be in arrears of rent, which had not been cleared despite the notice of demand and it was further claimed that the premises were required for rebuilding purposes.
2. The appellants filed a common written statement pleading that one Mr. Bhoj Raj was the landlord, who had since passed away and after his demise his wife and children had succeeded to the property. The respondents were alleged to have no concern with the premises. The receipt of any notice for demand of rent was denied. The appellants are real brothers and it was claimed that appellant No. 1 was running the business of dry-cleaning in the premises in pursuance to the license issued by the competent authority and he was the proprietor of the shop. Appellant No. 2 was assisting and helping appellant No. 1 right from the inception of the tenancy and the business was being carried on by both the appellants though appellant No. 1 is in actual physical possession and control of the premises. The other allegations were also denied.
3. The parties led their evidence and in terms of the order dated 26.10.1994 of the Additional Rent Controller (ARC for short) it was found that the grounds for sub-letting or reconstruction of the premises were not made out and thus the petition was dismissed insofar as the grounds under Section 14(1)(b) & (1) of the said Act are concerned. However, it was found that the respondents had succeeded in establishing that appellant No. 1 was in arrears of rent and thus the criteria for eviction on ground of non-payment of rent as set out under Section 14(1)(a) of the said Act had been made out. However, this being the first default, appellant No. 1 was held entitled to the benefit under Section 14(2) of the said Act.
4. The result of the aforesaid adjudication was that both the appellants and the respondents were aggrieved by the order. The appellants were aggrieved by the finding arrived at that appellant No. 1 was in arrears of rent while the respondents filed the appeal aggrieved by the rejection of the ground of sub-letting under Section 14(1)(b) of the said Act. Both these appeals were decided by a common Judgment dated 19.1.2001 of the Additional Rent Control Tribunal (ARCT for short). The appeal filed by the respondents succeeded as sub-letting was made out while the appeal filed by appellant No. 1 in respect of his not being in arrears of rent was dismissed. The appellants have thus filed the present second appeal challenging both the aspects of the order of the ARCT.
5. It may be noticed at the threshold that the present appeal has been filed under Section 39 of the said Act, which is only on a question of law. This Page 0434 provision stands deleted by the amendment of the said Act in 1988 but proceedings initiated prior to the amendment are amenable to a second appeal and it is in view thereof that this second appeal has been entertained.
6. It may be added at this stage that the appellants filed CM No. 95/2001 seeking leave to lead additional evidence. It is alleged in the application that the appellants had given all the documents under their possession pertaining to the case to their counsel before the trial court and that appellant No. 1 is illiterate while appellant No. 2 is only a Matriculate. The appellants were under the bonafide belief that all the documents given to their counsel were filed before the trial court but on inspection of the trial court record on 10.5.2001 it came to light that some of the documents given to the counsel had not been filed on record. This plea also arises in view of the objection of the learned Counsel for the respondents that the appellants have tried to introduce documents, which were either not proved before the trial court or had not even been filed before the trial court. The counsel for the appellants is stated to have passed away on 31.12.1998 and his wife was contacted, who was able to locate the old file and produce these documents. These documents are the license issued by the MCD Health Department, Certificate of Registration under the Delhi Shops & Establishment Act and the documents showing realization of license fee from Mr. Chunni Lal on yearly basis. It is further alleged in the application that in the year 1994 appellant No. 2 developed a heart problem and thus the business of dry-cleaning and pressing had to be stopped from the shop and the entire premises was used for the purposes of running of other business such as pan, biri, cigarette and aerated water. These vending items are stated to be stored in the shop and the sale was being conducted through a khokha. It is, thus, pleaded that appellant No. 1 continues to be in actual and physical control of the premises.
7. The aforesaid application has been contested by the respondents largely on the plea that a negligent party cannot take advantage of its negligence as no appropriate reason has been given for non-production of the evidence at the relevant stage. The application is also stated to be a sequitor to the objection of the learned Counsel for the respondents that the appellants had misled this Court at the stage of admission into believing that the documents filed were already on record. The respondents had even sought prosecution of the appellants in an application filed by the respondents. The appellants in reply have admitted that all the documents filed are not on record and it is thereafter that this application has been filed. I deem it appropriate to consider the merits of this application at this stage before proceeding with the appeal. There is no satisfactory explanation forthcoming as to why these documents were not filed in the trial court or before the appellate court and the appellants must satisfy the conscience of the Court that despite due diligence these documents could not be produced and are thus required for adjudication at the second appellate stage. The appellants have failed to do so. Apart from this, the documents really do not throw any further light on the dispute in favor of the appellants. I am, thus, not inclined to accept the plea for production of these documents at the second appeal stage.
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8. In view of the present appeal arising only on a question of law, learned Counsel for the appellants was asked to set out as to what question he sought to raise in the present appeal. The sum and substance of the submissions of the learned Counsel for the appellants was that the respondents had failed to prove on record that they were the landlords/owners of the suit property as they were not the direct descendants of the deceased owner but were the sister and the children of the sister. Since the Will was not proved on record as per law, the respondents ought not to have been held to be landlords/owners of the suit property. Thus, the question of non-payment of rent in pursuance to any notice would not arise as the notice was sent by persons who were not the landlords/owners of the premises. It was further pleaded that the findings of the ARCT reversing the findings of the ARC on the question of sub-letting amounted to reversal of a well reasoned order contrary to the settled principles of sub-letting. The questions of law which learned Counsel for the appellants claimed to raise are as under:
i. Whether the Will, not proved in accordance with law, can be relied upon for establishing the status as a landlord/owner of a tenanted premises?
ii. Whether a notice issued by a party, which has failed to establish its right as a landlord/owner mandates the payment of rent by the tenant?
iii. Whether the ARCT ignored the settled principles of sub-letting while reversing the findings of the ARC?
9. Before embarking on the consideration of the aforesaid questions, it would be useful to refer to the reasoning of the ARCT while coming to its findings. In this behalf the testimony of RW-1 (appellant No. 1 herein) had itself been referred to where he has stated that he had stopped paying rent since there was no owner after the demise of late Mr. Bhoj Raj. He has further stated that respondent No. 1 used to claim the rent but since she did not know how to write a receipt and had got the receipt prepared from someone else the rent was not paid. The statement has been read to lead to a conclusion that appellant No. 1 was clearly informed about respondent No. 1 being the landlady and appellant No. 1 neither paid the rent nor took any steps for deposit of rent in Court under Section 27 of the said Act. It has been held that it was not within the competence of the tenant to challenge the bequeath by a Will of the tenanted property by the erstwhile owner in favor of the respondents especially when there was no contest in that behalf nor did the wife and children of the deceased owner come forward to claim that they have become owners of the property.
10. As far as the aspect of sub-letting is concerned, a dual stand on the part of the appellants was found to have been taken on record. On the one hand it was claimed that both the appellants were joint tenants while on the other hand it was claimed that only appellant No. 1 was the tenant and appellant No. 2 was merely assisting appellant No. 1 in his business. The material evidence considered was the tax returns filed by both the appellants. The tax returns of appellant No. 1 are of the year 1979-80 (exhibit AW-2/1) while appellant No. 2 filed the tax returns for 1982-83 (exhibit AW-1/1), 1983-84 (exhibit AW-1/2) & 1984-85 (exhibit AW-1/3). For the period appellant No. 2 Page 0436 had filed the returns there were no returns of appellant No. 1 but for the period appellant No. 1 had filed the returns, it is not disputed that appellant No. 2 had not filed returns. The conclusion has been reached that while the business was earlier being carried on by appellant No. 1, the business was parted with as also the premises to appellant No. 2 subsequently and for that period appellant No. 1 stopped filing returns and appellant No. 2 filed the returns indicating the tenanted premises as the business premises. The returns of appellant No. 1 are also for a Pan shop stated to be running from a part of the premises. The ARCT, thus, found that appellant No. 1 had withdrawn from the business of dry-cleaning as there was no income being shown from the same. The pan shop was being run from the corner of the verandah falling in front of the tenanted premises and was not an integral part of the shop. Thus the pan shop was being run from the outer corner of the common verandah used for passing of the customers. The testimony of appellant No. 1 did not show that he was sitting in shop but on the other hand testimony of appellant No. 2 shows that he was “dealing with the entire business”.
11. The ARCT, thus, held that once the presence of appellant No. 2, an outsider was found in the premises the onus was on the tenant to establish his status in the premises.
12. Now coming to the questions raised by learned Counsel for the appellants in the present appeal. The first question arises from the mode and manner of proof of the Will under which the respondents derive their title. It is not disputed that the premises were let out by one Mr. Bhoj Raj, who owned the property though there was no written rent agreement. It is not also in dispute that the rent receipts were in the name of appellant No. 1. Mr. Bhoj Raj passed away on 21.9.1980 and was survived by his wife and children. The claim of respondent No. 1, being the sister of the deceased, is based on a Will in her favor. The other respondents are the children of the sister of the deceased owner.
13. Learned Counsel for the appellants relied upon the provision of Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as the Succession Act). The said Section reads as under:
63. Execution of unprivileged wills. – Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:
(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal Page 0437 acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
14. Learned Counsel thus submitted that as per Clause (c) of Section 63 of the Succession Act, the Will was required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will in the presence and by the direction of the testator and in the presence of each other. Learned Counsel submitted that the attesting witnesses had not been examined to prove the Will in accordance with law and placed reliance on Section 68 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act), which reads as under:
68. Proof of execution of document required by law to be attested – If a document is required by law to be attested it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.
15. Learned Counsel submitted that thus even if the Will is registered, the reading of the aforesaid two provisions would show that the attesting witnesses had to be examined and Section 116 of the Evidence Act would not come in the way of the appellants, which reads as under:
116. Estoppel of tenant and of license of person in possession – No tenant of immovable property or person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given.
16. Learned Counsel referred to the Judgment of the learned single Judge of this Court (as he then was) in Sudir Engineering Co. v. Nitco Roadways Ltd. 1995 II AD (Delhi) 189 to advance the proposition that the admission of a document as evidence and it being exhibited is not to be confused with the proof of the document. The relevant paragraph 15 reads as under:
15. The marking of a document as an exhibit, be it in any manner whatsoever either by use of alphabets or by use of numbers, is only for the purpose of identification. While reading the record the parties and Page 0438 the Court should be able to know which was the document before the parties and the Court should be able to know which was the document before the witness when it was deposing. Absence of putting an endorsement for the purpose of identification no sooner a document is placed before a witness would cause serious confusion as one would be left simply guessing or wondering which was the document to which the witness was referring to while deposing. Endorsement of an exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved: nor the document can be held to have been proved merely because it has been marked as an exhibit.
17. Learned Counsel for the respondents on the other hand submitted that it was not for a tenant to challenge the title of the landlord. The respondents were alleged to have derived prior title to the property in question in pursuance to a registered Will and the direct descendants of late Mr. Bhoj Raj never claimed title to the same as they never disputed the Will in favor of the sister of late Mr. Bhoj Raj. It was also submitted that an order passed in another proceedings between the respondents and another tenant was proved as exhibit AW-3/3 in which it had been held that the title was properly derived by the respondents who are liable to be substituted as such. Learned Counsel submitted that such an order can be relied upon in view of the Judgment of a learned single Judge of this Court in Ram Parshad Rohatgi v. Surinder Kumar Sharma and Ors. 2006 (90) DRJ 674. The learned single Judge relied upon on an earlier Judgment of the Supreme Court in Tirumala Tirupati Devasthanams v. K.M. Krishnaiah AIR 1998 SC 1132 where it has been held that even though a Judgment may not be inter partes it would be admissible to prove the title in respect of the suit property.
18. On consideration of the pleas of learned Counsel for the parties, I am of the view that the appellants have failed to make out any case on this ground. In fact, really speaking there is not even a question of law raised as the matter is one of consideration of evidence and coming to a conclusion. There is no dispute between the legal heirs of late Mr. Bhoj Raj. There is no dispute between the respondents and the legal heirs of late Mr. Bhoj Raj. The legal heirs of late Mr. Bhoj Raj are not claiming title to the tenanted premises but have accepted the claim of the respondent to the tenanted premises in pursuance to a duly registered Will. The respondents are not outsiders but the sister of the deceased owner and the children of the sister. It is trite to say that it is not really open for the tenant to challenge the title of the landlord as concluded in the impugned order. It is also relevant to note that the expression used both in the proviso to Section 14(1)(a) & (b) of the said Act is “landlord” and not even “owner”. A landlord is defined under Section 2(e) of the said Act, which reads as under:
2. Definitions. – In this Act, unless the context otherwise requires-
…. …. …. …. …. …. …. ….
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(e) “Landlord” means a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent, if the premises were let to a tenant;
19. There is also substance in the plea of the learned Counsel for the respondents based on the Judgment in Ram Parshad Rohatgi case (supra) that the orders passed in other proceedings between the respondents and their tenants can be relied upon for establishing the entitlement of the respondents as landlords/owners. The appellants seem to be under a misconception that the present case is one of inter se dispute of title while it is not so.
20. The testimony of the appellants as discussed in the impugned order also establishes that the reason for non-payment of rent was alleged to be the fact that the receipt was not in the hand of respondent No. 1. The appellants have been taking contradictory pleas and trying to wriggle out of the allegation to pay rent of the tenanted premises. The appellants have not received any notice of demand of rent from any of the parties or heir of late Mr. Bhoj Raj nor did they take any steps to deposit the rent in Court under Section 27 of the said Act. There is no merit in the plea of the appellants that the respondents had failed to establish their status as landlords of the tenanted premises and there is no reason to interfere with the con-current findings of both the courts below on this aspect.
21. The second question raised about the payment of rent in pursuance to the demand notice really does not survive in view of the aforesaid observations in view of the fact that the plea is based on the stand that the demand notice was not served by a competent person.
22. The last aspect and the third question is on the issue of sub-letting. No doubt here the findings of the ARCT are different from the ones arrived at by the ARC. Learned Counsel for the appellants submitted that the ARCT committed an error of law in relying upon the returns filed by both the appellants before the Income Tax Authorities as such evidence could not have been read against the appellants. In this behalf learned Counsel relied upon the Judgment of the Apex Court in Sri Chand Gupta v. Gulzar Singh and Anr. . In the facts of the said case sub-letting was alleged by the landlord and the tenant’s brother made a statement before the Income Tax Authorities that he was the sole tenant. It was held that it could not be taken as an admission on behalf of the tenant.
23. Learned Counsel also referred to the Judgment of the Division Bench of this Court in Hazari Lal and Ram Babu v. Shri Gian Ram and Ors. 1972 RCR 74 to claim that the principles of sub-letting and parting with possession were not satisfied in the present case. The relevant discussion is in paragraph 10 of the judgment, which is as under:
10. Clause (b) to the proviso to Sub-section (1) of Section 14 of the Rent Act uses three expressions namely, “sub-let”, “assigned” and “otherwise Page 0440 parted with the possession” of the whole or any part of the premises without obtaining the consent in writing of the landlord. The three expressions deal with different concepts and apply to different circumstances. In sub-letting there should exist the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incidents in the estate, payment of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment, the tenant has to divest himself of all the rights that he has as tenant. The expression “parted with the possession” undoubtedly postulates as has been held in the cases mentioned above the parting with legal possession. As we understand it, parting with possession means giving possession to persons other than those to whom possession has been given by the lease and “the parting with possession” must have been by the tenant. The mere use by other persons is not parting with possession so long as the tenant retains the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So who does not pay him any rent or other consideration it would not be possible to say that the tenant has parted with possession from the guest for the duration of his stay, the tenant has been given the exclusive use of the whole or a part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time, he cannot be said to have parted with the possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with the possession so long as, during the absence, tenant has a right to return to the premises and be in possession thereof. A mere privilege or license to use the whole or a part of the demised premises which privilege or license can be terminated at the sweet will and pleasure of the tenant at any time would not amount to “parting with possession”. “The divestment or abandonment right to possession is necessary in order to invoke the clause of parting with possession.
24. It was thus submitted that there was really no divesting of interest and the legal and physical possession was retained by appellant No. 1. The Judgment of the Apex Court in Delhi Stationers and Printers v. Rajendra Kumar 40 (1990) DLT 446 was also relied upon for the principle that parting with possession means possession with the right to include and also a right to exclude others and that mere occupation is not sufficient to infer sub-tenancy.
25. Learned Counsel for the respondents on the other hand has relied upon the Judgment of the Apex Court in Dr. Vijay Kumar and Ors. v. Raghbir Singh Anokh Singh 1974 All India Rent Control Journal 41. A shop had been let out to the father and the allegation was of sub-letting by half of the portion being given to his sons through partition of the shop and the occupants locking the same separately. It was held that no presumption can be drawn from mere relationship of the father and son or from joint living and joint messing that the father and the sons were in permissive possession of the half portions. The plea of sub-letting was upheld.
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26. Learned Counsel also referred to the Judgment of the Apex Court in Joginder Singh Sodhi v. Amar Kaur . It was held that the arrangement between the sub-tenant is one where the landlord is kept out of the scene. In fact the scene is enacted at the back of the landlord and thus it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Thus, for payment of rent undoubtedly an essential element of lease or sub-lease it could be paid in different forms. The law does not require such payment to be proved and the Court is permitted to draw its inference upon the facts of the case proved at the trial including the delivery of exclusive possession to infer that the premises were sub-let. This Judgment has been followed by this Court in CM (M) No. 1384/2006 titled Haqikat Rai Nanda v. Shri Ram Lal Bansiwal and Ors. Decided on 5.9.2006.
27. Learned Counsel also referred to the Judgment of the learned single Judge of this Court in Kailash Kumar and Ors. v. Dr. R.P. Kapur , which has succinctly set out the principles as regards sub-letting. It was held that no two cases are similar and once it is proved that a particular portion of the demised premises has been given in exclusive possession to a stranger then the onus shifts on the tenant to show in what capacity the stranger is in exclusive possession of that portion. This aspect has also been discussed in a recent Judgment of this Court in CM (M) No. 1602/2006 titled Municipal Corporation of Delhi v. Sanjay Goel decided on 1.11.2006 where it has been observed as under:
7. Once the presence of third-parties is found in the tenanted premises, there can be no doubt that it is for the tenant to show in what capacity such third-parties are in occupation of the premises and the onus, thus, shifted on the petitioner Corporation.
8. In Kailash Kumar and Ors. v. Dr. R.P. Kapur , it has been held that the question of subletting or parting with possession would depend on the peculiar facts of each case and the basic principle enunciated even by the Supreme Court is that once it is proved that a particular portion of the demised premises has been given in exclusive possession to a stranger, then the onus shifts on the tenant to show in what capacity the stranger is in exclusive possession of that portion and on the failure of the tenant to explain presence of such person in exclusive possession of that said portion of the demised premises, presumption would arise that the portion was sublet or parted with possession in favor of the stranger by the tenant. The observations in Hari Ram v. Rukmani Devi and Ors. are also relevant. On the plea of the tenant that the onus was on the landlord to prove subletting, it was Page 0442 observed that the relationship of sub-lessees and lessee is a matter of knowledge, which is confined to the parties alone and thus all that the landlord can do in such circumstances is to prove the circumstances which would reasonably lead to an inference of subletting or parting with possession or assigning the premises or any part thereof. The aforesaid judgments have been discussed in recent judgments of this Court in R.C.S.A No. 390 of 1980 titled Sh. Kishan Chand v. Sh. Sri Chand decided on 18.07.2006 and CM (M) No. 329 of 2004 titled Smt. Shakuntla Gupta v. Sh. Mahendra Kumar and Ors. decided on 25.08.2006.
28. The last Judgment referred to by learned Counsel for the respondents is a recent Judgment of the Apex Court in Gurdev Kaur and Ors. v. Kaki and Ors. in respect of scope of a second appeal to the High Court under Section 100 of the Code of Civil Procedure, 1908. It has been held that the interference by the High Court was permissible only in cases involving a substantial question of law and the findings of fact arrived at by the trial court affirmed by the first appellate court cannot be interfered with by the High Court in second appeal. Learned Counsel submitted that similar principle thus has to apply in the present case. In fact in Kailash Kumar and Ors. Case (supra) also it has been observed that in an appeal filed under Section 39 of the said Act the High Court was incompetent to reassess the evidence afresh and on a question of fact it was bound by the decision of the Rent Control Tribunal.
29. If the pleas of the learned counsels for the parties are considered within the ambit of the aforesaid principles, I am of the considered view that the appellants have no case.
30. Firstly, there is no substance in the plea of the appellants based on the Judgment in Sri Chand Gupta case (supra) where facts are different and the principles set out would not apply. The present case is not one where brother of the tenant has made any admission before the Income Tax Authorities. Both the appellants filed returns of tax showing income from the business. The returns are of different periods and once appellant No. 2 started filing the returns, appellant No. 1 stopped doing so. This material evidence has been taken into consideration to support the conclusion that appellant No. 1 had stopped doing business while appellant No. 2 had started working exclusively.
31. Secondly once the presence of an outsider in the tenanted premises is found, the onus shifts on the tenant to show in what circumstances such outsider is in the premises. This principle is clear from the judgments in Mahendra Saree Emporium II v. G.V. Srinivasa Murthy ; Kailash Kumar and Ors. case (supra) and Shri Kishan Chand v. Shri Sri Chand (2006) 2 RCR 488. The appellants have been taking conflicting stands. The initial stand was that the appellants were co-tenants but the appellants Page 0443 realized that they could not support their stand as the rent receipts were only in the name of appellant No. 1. The stand was thus sought to be taken that appellant No. 2 was working with appellant No. 1. It is not a case where appellant No. 2 is an employee as no material has been proved in this behalf. No material has been shown as to the nature of business understanding between appellants 1 & 2. There is, in fact, no satisfactory explanation. Appellant No. 1 was filing returns of business from the shop. Thereafter appellant No. 2 started filing returns of the income from running of business exclusively. This is a material fact in support of the conclusion that appellant No. 1 had divested himself of the business from the tenanted premises. Appellant No. 1 has, in fact, started running a pan shop from the verandah of the tenanted premises, which can hardly be said to be a case of the control of the tenanted premises. I am thus of the considered view that the findings arrived at by the ARCT on the basis of appreciation of the evidence on record does not call for reappreciation and in fact, such reappreciation would not be permissible in the present second appeal. The findings of fact by the ARCT are final as observed in Kailash Kumar and Ors. Case (supra).
32. I am, thus, of the considered view that there is no merit in the pleas of the appellants on any of the three issues sought to be raised as questions of law and in fact really speaking they are not even questions of law, which are required to be examined.
33. The appeal & the application are without any merits and are dismissed with costs of Rs. 5,000/-.