The burden of proving the tenant's capacity and the genuineness of the receipt lies with the tenant, and a clear finding regarding the genuineness of the receipt is necessary to establish the existence of a landlord-tenant relationship.

( 1 ) THIS second appeal by the owner-landlord is directed against the judgment dated 1. 6. 1984 passed by the Rent Control Tribunal, Delhi whereby the appeal of the tenant was allowed and the eviction order passed against the tenant under clause (b) and (h) of sub-section (1) of section 14 of the Delhi Rent Control Act was set aside.

( 2 ) THE appellant had sought eviction of the respondent on the grounds of sub-letting and acquiring alternate accommodation by the tenant. In defence, it was pleaded by the respondent that he was in possession of the property not as a tenant but in his own right. Reliance was placed on a receipt allegedly having been executed by one of the co-owners Ex. R. 1. According to the said receipt, Swaran Singh one of the co-owners had agreed to sell the property to the respondent and one Aya Singh for a sum of Rs. 25,000. 00 and had received Rs. 2000. 00 as earnest money. In part performance of the contract, the possession of one room was delivered to the respondent. According to the receipt, possession of only one room was delivered to the respondent, however, it is not disputed that besides one room, the respondent is also in occupation of some other portion of the property.

( 3 ) THE learned Addl. Rent Controller, on perusal of the entire evidence on record, held that the receipt Ex. R. 1 was not genuine and he further held that the grounds under clauses (b) and (h) stood proved. Consequently he passed the eviction order.

( 4 ) THE tenant went up in appeal to the Rent Control Tribunal. The Tribunal without going into the question whether the receipt was genuine or not, came to the conclusion that the relationship of landlord and tenant had not been established. With this finding, he allowed the appeal and set aside the eviction order.

( 5 ) I have heard the learned counsel for the parties and have also gone through the oral as also the documentary evidence on record. It is an admitted fact that the premises in question belonged to the father of the appellant. He having died, the premises were inherited by the appellant and his other brothers and sisters. All the brothers and sisters have been impleaded as respondents and they have admitted the case of the appellant in their written statement. The respondent has also not denied that the appellant is one of the co-owners and the other co-owners are respondents Nos. 2 to 5. His case as set up in the written statement is that as a part performance of the agreement to sell he was put in possession and as such he is in possession in his own right. Undoubtedly, the respondent is in possession of the property for the last several years and has not paid rent at least from July 1977. He is certainly not the owner. In these circumstances, the burden of proving his capacity was on him and not on the landlord. He has based his defence on the receipt Ex. 1. In the circumstances it was necessary for the Tribunal to record a clear finding as to the genuine. ness of the receipt. Without recording such a finding, it was not possible to hold that there was no relationship of landlord and tenant. A stranger who is in occupation of a property is either a trespasser or a tenant or a licensee. The learned Tribunal has not recorded any finding regarding the status of the respondent.

( 6 ) FOR the reasons recorded above, the appeal is allowed. The impugned judgment passed by the Rent Control Tribunal is set aside and the case is sent back to the Tribunal to hear the parties afresh and record a finding regarding the genuineness of the receipt and the status of the respondent. The parties are directed to appear before the Rent Control Tribunal on 22. 4. 1987. The records be sent back forthwith.