Delhi District Court
Nirmal Kumari Jain & Anr. vs . Prem Chand & Ors. on 2 June, 2011
Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
IN THE COURT OF Mr. DEVENDRA KR. SHARMA,
ADDL. RENT CONTROLLER, DISTRICT NORTH: DELHI.
E No. 136/2009.
Unique Case ID No: 02401C0028262009
1. SMT. NIRMAL KUMARI JAIN
W/o Late Sh. Daulat Singh Jain
2. SH. PRADEEP KUMAR JAIN
3. SH. VIJENDER KUMAR JAIN
Both sons of Late Sh. Daulat Singh Jain
R/o 5859, Jogiwara Nai Sarak,
Delhi-110006. ...Petitioners.
Versus
1. SH. PREM CHAND
S/o Sh. Ram Chander
2. SMT. PRABHA GOEL
W/o Late Sh. Vinod Kumar
Both residents of 2704,
Second floor, Naya Bazar,
Delhi-110006.
Second address:
2707, Second floor, Naya Bazar,
Delhi-110006.
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Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
3. SMT. PREM DEVI JAIN
W/o Late Sh. Dalpat Singh Jain
4. SH. JITENDER JAIN
S/o Late Sh. Dalpat Singh Jain
5. MS. SAVITA JAIN (married daughter) of
Late Sh. Dalpat Singh Jain
Respondent nos. 3 to 5 residents of
5859, Jogiwara, Nai Sarak,
Delhi-110006.
6. MS. NAVITA JAIN (married daughter) of
Late Sh. Dalpat Singh Jain,
R/o 1968, Katra Khushal Rai,
Kinari Bazar, Delhi-110006.
7. MS. MEENA JAIN (married daughter) of
Late Sh. Dalpat Singh Jain,
R/o 119-120, Pocket-A, Rohini,
Delhi. ...Respondents.
Date of institution of the petition : 22/01/2009
Date on which order was reserved : 19/05/2011
Date of Decision : 02/06/2011
ORDER
02.06.2011 Vide this order, I shall dispose of the leave to defend application filed on behalf of respondent no. 2 U/Sec. 25 B (4) & (5) E no. 136/2009 Page 2/10 Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
of the Delhi Rent Control Act, 1958 (herein after referred to as D.R.C. Act, 1958) for seeking leave to contest the present eviction petition on merits.
Relevant facts for disposal of the present application are as follows:-
1. No leave to defend application was filed on behalf of respondent no. 1 within stipulated period, therefore, an eviction order was passed by the Predecessor court on 15/09/2009 against respondent no. 1. Other respondents no. 3 to 7 have also not filed their leave to defend applications within stipulated period of 15 days from the date of service and otherwise also respondent no. 3 to 7 are proforma defendants and no relief has been sought against them.
2. The present petition has been filed with the allegations that petitioners are the owners and respondent nos. 1 & 2 are the tenants in respect of a Hall measuring 10'6" X 13'.0" adjoining store measuring 4' 3"X 5' 2", Kotha measuring 4' 0" X 3' 9" on the ground floor and basement in property bearing Municipal no. 5859, Jogi Wara, Nai Sarak, Delhi-110006 as shown in green lines in the site plan attached with the petition (hereinafter referred to as 'suit E no. 136/2009 Page 3/10 Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
property') which has been fallen in the share of Late Sh. Daulat Singh Jain, in a suit for partition vide judgment and decree dated 28/02/2002 and now the same is required by the petitioners for their residential purposes.
3. It is further alleged that the petitioners are residing on the first floor and on the second floor and family of the petitioner no. 3 consists of himself, his wife, two daughters aged about 18 years and 16 years both are studying in the school in 12th and 11th class respectively. The family of the petitioner no. 2 consists of himself, his wife, two children, one is daughter aged about 08 years and another is son aged about 05 years and both are school going and petitioner no. 2 is residing in the tenanted house in Laxmi Nagar, Delhi due to paucity of accommodation. The petitioners are at present in occupation of one room, one kitchen, bathroom on the first floor, one room on the second floor and a Barsati room and kothri on third floor and the petitioners are Income Tax Assessees.
4. It is further alleged that the accommodation available with the petitioners are highly insufficient for the needs and requirement of the petitioners and their dependent family members and, thus, suit premises is required bonafidely for themselves and the guests as atleast petitioners require five rooms, drawing, dinning E no. 136/2009 Page 4/10 Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
room and a room for offering pooja.
5. It is further alleged that previously Sh. Dalpat Singh Jain and Sh. Daulat Singh Jain, were the co-owners of the property in dispute and Sh. Dalpat Singh Jain, the Uncle of petitioner nos. 2 & 3 filed a suit for partition of the entire property bearing no. 5859- 5861, Jogiwara, Nai Sarak, Delhi and the said property was partitioned vide judgment and decree dated 28/02/2002 and the portion fell into the share of Mr. Dalpat Singh Jain is shown in the yellow colour in the plan attached and portion of the predecessor in interest of the petitioners is shown in red colour and Mr. Dalpat Singh Jain has expired on 09/11/2002 and Mr. Daulat Singh Jain has expired on 30/01/2006 leaving behind the petitioner no. 1 as his wife, the petitioners no. 2 & 3 as his sons and 03 daughters namely Smt. Prabha Chaploid, Smt. Sunita Dhandia and Smt. Nina Sheirmal, but the said three daughters have relinquished their rights in favour of the petitioners vide Relinquished Deed dated 10/09/2008 and, thus, petitioners have become the owners and landlords of the shares of the daughters of Mr. Daulat Singh Jain and respondent nos. no. 3 to 7 are the legal heirs of Mr. Dalpat Singh Jain and they are only proforma party and no relief has been claimed against them.
6. Upon the service of the summons, respondent no. 2 filed E no. 136/2009 Page 5/10 Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
her leave to defend application alongwith the supporting affidavit alleging and deposing that the premises in dispute was let out for commercial purpose by Mr. Daulat Singh Jain and Sh. Dalpat Singh Jain and there is only one composite tenancy and, therefore, the tenancy can not be sub-divided as claimed by the petitioners and, therefore, petition is not maintainable as the eviction petition for part of the premises is not tenable.
7. It is further deposed that as per documents filed by the petitioner, the partition decree was passed on 05/05/2001 which was never executed and only application for compromise was filed, and, therefore, the decree passed is no decree in the eyes of Law as no Partition Deed was filed by the parties and, thus, there is no partition by metes and bounds and the portion of the premises is not demarcated at all as claimed by the petitioners and the contesting respondent has not been privy or party to any of the inter-se arrangement/settlement between them and there being number of triable issues, leave to contest the present petition on merits may kindly be granted.
8. Reply to leave to defend application along with the counter affidavit of Mr. Vijender Kumar Jain i.e. petitioner no. 3 was filed wherein petitioners have denied all the material allegations E no. 136/2009 Page 6/10 Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
further deposing that entire property is residential in nature and the suit premises is lying locked and after final partition decree, the present petitioner became the owner and said fact was informed to respondent nos. 1 & 2 and has denied that tenanted premises can not be sub-divided and petition can not be filed for the portion belonging to petitioners.
9. It is further deposed that the petitioners have no other premises and portion in occupation of the respondent are not sufficient for the residence of the petitioners as well as their family members and judgment and decree dated 28/02/2002 has become final and res-judicata between the parties and same is according to Law and since there is no triable issue raised, therefore, leave to defend application is liable to be dismissed and an eviction order may kindly be passed.
10. I have given my thoughtful consideration to the submissions advanced on behalf of the parties and perused the record carefully.
11. Petitioner has placed reliance upon the judgments reported in 1995 RLR (SC) 586, 1996 RLR 189, 2006 RLR SC pg.
1. On the other hand, respondent has placed reliance upon the E no. 136/2009 Page 7/10 Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
judgment AIR 1994 SC 853, AIR 1988 Delhi 13, AIR 1919 Cal. 997, AIR 1922 Patna 608, AIR 1997 SC 998.
A. The first ground taken is that the petitioners are not the owners/landlords as the alleged partition decree was never executed and the same is no decree in the eyes of Law. Now, Law is settled and no tenant can challenge the partition arrived at between the parties and in this regard reliance may be placed upon the judgment reported in (2001) 9 SCC 263 and, thus, objection raised pertaining to partition being sham and without having any force in the eyes of Law, thus, appears to have been taken for the sake of defence without having any substance.
B. So far as relationship of landlord and tenant is concerned, it is admitted case of the respondents themselves that property was let out jointly by the previous owners Mr. Dalpat singh and Mr. Daulat Singh and admittedly, the present respondents and proforma respondents nos. 3 to 7 are the legal heirs and, thus, the present petitioners being legal heirs have every right to maintain the present petition even being the co-owners.
C. The next ground taken is that the tenancy was one and composite tenancy and now it can not be sub-divided by the legal E no. 136/2009 Page 8/10 Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
heirs of the original landlord and otherwise also, portion has not been demarcated, therefore, the present petition is not maintainable. The Law is well settled and Hon'ble Supreme Court has held in judgment reported in 1995 RLR (SC) 586 that there can be split of tenancy in case of partition and so far as demarcation is concerned, in present case, the property falling to the share of petitioners are clearly demarcated as is shown in site plan and clearly identifiable and, therefore, judgment reported in 2006 RLR SC Vol. 36 pg. 1, it appears that the said ground has been taken for the sake of defence without having any substance.
D. In the light of aforesaid discussion, this Court is of the opinion that contesting respondents have failed to raise any plausible defence which, if allowed to be proved would disentitle the petitioners from obtaining an eviction order and on the other hand, petitioners have proved the ownership qua suit property in respect of respondent nos. 1 & 2, their bonafide requirements as the same has not been challenged in the entire leave to defend application and there is no allegation that he is having any other alternative reasonable suitable accommodation and, therefore, leave to defend application being without any merits is hereby dismissed.
12. In consequence thereof an eviction order is passed U/s E no. 136/2009 Page 9/10 Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.
14 (1) (e) of the D.R.C. Act in favour of the petitioners and against the respondent nos. 1 & 2 only as respondent nos. 3 to 7 are proforma respondents in respect of a Hall measuring 10'6" X 13'.0"
adjoining store measuring 4' 3"X 5' 2", Kotha measuring 4' 0" X 3' 9"
on the ground floor and basement in property bearing Municipal no. 5859, Jogi Wara, Nai Sarak, Delhi-110006 as shown in green lines in the site plan Ex. P-1 attached with the petition (as put by the court itself today). However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act. The order be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Announced in open court on 2nd June 2011. Devendra Kr. Sharma A.R.C.(North)/Delhi.
(1+2 separate copies are attached).
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E no. 136/2009NIRMAL KUMARI JAIN & ANR. VS. PREM CHAND & ORS.
Date: 02/06/2011 Present: None.
Vide separate order of even date, leave to defend application filed on behalf of respondents is dismissed.
In consequence thereof an eviction order is passed U/s 14 (1) (e) of the D.R.C. Act in favour of the petitioners and against the respondent nos. 1 & 2 and respondent nos. 3 to 7 are proforma respondents in respect of a Hall measuring 10'6" X 13'.0"
adjoining store measuring 4' 3"X 5' 2", Kotha measuring 4' 0" X 3' 9" on the ground floor and basement in property bearing Municipal no. 5859, Jogi Wara, Nai Sarak, Delhi-110006 as shown in green lines in the site plan Ex. P-1 attached with the petition (as put by the court itself today). However, this order shall not be executable before the expiry of six months from the date of this order as provided U/sec. 14 (7) of D.R.C. Act. The order be sent to the server (www.delhidistrictcourts.nic.in).
File be consigned to Record Room.
Devendra Kr. Sharma A.R.C.(North)/Delhi.E no. 136/2009 Page 11/10
Nirmal Kumari Jain & Anr. Vs. Prem Chand & Ors.E no. 136/2009 Page 12/10