Delhi District Court
Kamru Nisha vs Smt. Rehana on 24 December, 2018
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IN THE COURT OF MR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Eviction Petition No.168/13 (New No.-79362/16)
Unique Case ID/CNR No.DLCT03-001572-2013
1. Kamru Nisha
wd/o Late Mehrulzama @ Babu
2. Mohd. Nadeem through LRs
(a) Mst. Shakra wd/o Mohd. Nadeem
(b) Baby Phalak d/o Mohd. Nadeem
(c) Baby Filza d/o Mohd. Nadeem
Both through natural guardian (mother)
All r/o H.No. 4115, Gali Barna
Nala Road, Sadar Bazar, Delhi-110006 ...Petitioners
Versus
Smt. Rehana
w/o Sh. Noor Mohammed
r/o 4115, First Floor
Gali Barna, Nala Road
Sadar Bazar, Delhi-110006 ...Respondent
Date of institution of the case : 06.07.2013
Date of Judgment reserved : 24.12.2018
Date of Judgment pronounced : 24.12.2018
Eviction petition No.168/13 (New No.79362/16) Page 1 of 39
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JUDGMENT
1. This judgment shall decide eviction petition u/s 14(1)(e) of the Delhi Rent Control Act filed by the petitioners against the respondent on the ground of requirement of the premises for their residence and for the residence of other family members dependent upon petitioner no. 2 for residence.
Petitioners' case
2. It is stated that the petitioner no. 2 is co-owner and co-landlord and the respondent is tenant in respect of two tin-shed rooms, one room with open space/courtyard and bathroom/W.C. on the first floor of property no. 4115, Nala Road, Gali Barna, Sadar Bazar, Delhi-110006, more specifically shown in red colour in the site plan filed with the eviction petition. It is stated that monthly rate of rent is Rs.2,200/- besides electricity, water and other charges.
3. It is pleaded that the tenanted premises was purchased by Mohd. Mehrulzama @ Babu (husband of petitioner no. 1 and father of petitioner no.
2) from the previous owners Mr. Chand Mal Surana & Ors., by way of a registered sale deed dated 09.02.1984. It is averred that after demise of Mr. Mohd. Mehrulzama, the petitioners and the other legal heirs became co-owners and co-landlords of the aforesaid property. It is pleaded that all Eviction petition No.168/13 (New No.79362/16) Page 2 of 39 3 legal heirs of Mr. Mohd. Mehrulzama except for Ms. Asma, relinquished their share in the tenanted premises in favour of the petitioner no. 2. A relinquishment deed was also registered in this regard on 31.12.2012.
4. It is stated that the tenancy in question was created by the previous owner in favour of the father of the respondent. After demise of the father, the tenancy devolved upon the respondent.
5. It is averred that the family of the petitioner no. 2 dependent upon him for residence and residing in property no. 4115, Nala Road, Gali Barna, Sadar Bazar, Delhi comprises of the following persons:-
(i) Ms. Kamru Nisha (petitioner no. 1)
(ii) Mr. Mohd. Nadeem (petitioner no. 2)
(iii) Wife of Mr. Mohd. Nadeem
(iv) Daughter of Mr. Mohd. Nadeem, aged about 11 years
(v) Daughter of Mr. Mohd. Nadeem, aged about 6 years
(vi) Mr. Mohd. Saleem (son of petitioner no. 1 and brother of petitioner
no. 2)
(vii) Wife of Mr. Mohd. Saleem
(viii) Mr. Sajid, son of Mr. Mohd. Saleem, aged about 29 years Eviction petition No.168/13 (New No.79362/16) Page 3 of 39 4
(ix) Ms. Saba, daughter of Mr. Mohd. Saleem, aged about 28 years
(x) Mr. Samadh, son of Mr. Mohd. Saleem, aged about 20 years
6. Besides the aforesaid persons, the family of the petitioners is stated to be comprising also of five married sisters of petitioner no. 2. It is pleaded that the sisters, their respective husbands and children also visit the house of the petitioners. However, due to shortage of accommodation, they are unable to stay and have to go back.
7. It is stated that the accommodation in occupation and possession of Mr. Mohd. Saleem comprises of two rooms, two stores, kitchen, bathroom and open terrace. This portion of the property is shown in green color in the site plan filed alongwith the eviction petition.
8. The portion of the property in possession of the petitioners, wife of petitioner no. 2 and children of petitioner no. 2, is shown in yellow color in the site plan filed alongwith the eviction petition.
9. It is stated that the requirement of the petitioners and their family members dependent upon them for residence is of 12 rooms in addition to the 2 rooms already in their possession. It is averred that the requirement is of Eviction petition No.168/13 (New No.79362/16) Page 4 of 39 5 one drawing room, one dining room, one namaz room, two bedrooms for petitioner no. 2 and his wife, one room for daughter, one room for mother, one study room, two bedrooms for married sisters, their husband and children, three rooms for the brother and his children, one room for guests and relatives.
10. It is stated that the portion shown in brown color in the site plan was gifted by the husband of petitioner no. 1/father of petitioner no. 2 to Mr. Qamaruzama and Mrs. Razia Begum by way of a registered gift deed dated 03.07.2003. It is averred that Mr. Qamaruzama and Mrs. Razia Begum were already in possession of this property in brown color, at the time of execution and registration of gift deed.
11. It is stated that the portion shown in orange color in the site plan was sold by the petitioner no. 2 to Mst. Nargis Begum, Mst. Shahjahan Begum, Mst. Nasreen Begum and Mst. Kausar Begum by way of a registered sale deed dated 04.06.2013. It is stated that even these persons were already in possession of the portion sold to them at the time of execution and registration of sale deed.
12. It is stated that the petitioners do not have any other reasonably Eviction petition No.168/13 (New No.79362/16) Page 5 of 39 6 suitable residential accommodation in Delhi. It is submitted that the accommodation in possession of the petitioners and family dependent upon petitioner no. 2 for residence is insufficient.
13. It is on the basis of these facts that a prayer has been made by the petitioners to pass an eviction order in respect of the tenanted premises in their favour and against the respondent.
Respondent's case
14. Summons were served upon the respondent. The application for leave to defend filed by the respondent was allowed by the Ld. Predecessor of this Court. Accordingly, the respondent filed her written statement. The respondent denied that there is a relationship of landlord and tenant between the petitioners and the respondent.
15. It is stated that the husband of petitioner no. 1/father of petitioner no. 2 fraudulently succeeded in having the sale deed dated 16.09.1984 executed in his favour. It is pleaded that the money was also given by the mother and the brother of the respondent.
16. It is pleaded that the petitioners and other legal heirs of Mr. Eviction petition No.168/13 (New No.79362/16) Page 6 of 39 7 Mehrulzama @ Babu had sent a legal notice dated 27.08.2008 calling upon the respondent to attorn petitioner no. 1 as her landlady.
17. It is stated that the petitioners and other legal heirs of Mr. Mehrulzama @ Babu filed a suit for mandatory injunction against the respondent bearing number 661/2008. It is averred that prayer in the suit was for directing the respondent to attorn petitioner no. 1 as her landlady and for payment of arrears of rent. However, this suit was withdrawn by the petitioners.
18. It is pleaded that the present petition ought to be dismissed since as per the own pleadings of the petitioners, the owners of the tenanted premises are now petitioner no. 2 and Mst. Aasma.
19. It is averred that Mr. Mehrulzama had filed a suit for possession against the respondent bearing no. 184/1987 which was dismissed.
20. It is pleaded that Mr. Mehrulzama had filed another suit bearing no. 478/1985 alleging that the respondent is a licensee. It is stated that Mr. Mehrulzama filed one more suit bearing no. 657/1993 for injunction in which it was alleged that the respondent is in illegal and unauthorized occupation of the premises. It is submitted that in the previous litigation between Mr. Eviction petition No.168/13 (New No.79362/16) Page 7 of 39 8 Mehrulzama and the respondent, it was nowhere pleaded that respondent is a tenant under him.
21. It is stated that the present petition is not maintainable in view of Section 14(6) of the Delhi Rent Control Act as the petitioner no. 2 allegedly became the owner of the premises on 31.12.2012.
22. It is stated that the site plan filed by the petitioners is incorrect. It is averred that there are no store rooms in the premises and all are living rooms. It is stated that the petitioners are in possession of ten rooms.
23. It is submitted that the married sisters and married brother of petitioner no. 2 are not dependent upon the petitioner no. 2.
24. It is pleaded that if petitioner no. 1 indeed required the tenanted premises, she would not have relinquished her share in the property in favour of petitioner no. 2. It is further stated that the married sisters and married brothers and petitioner no. 1, who relinquished their shares in the property in favour of petitioner no. 2, are not dependent upon petitioner no. 2.
25. It is submitted that a portion of the property was sold to Mst. Nargis Begum, Mst. Shahjahan Begum, Mst. Nasreen Begum and Mst. Kausar Eviction petition No.168/13 (New No.79362/16) Page 8 of 39 9 Begum for filing the present false case.
26. It is stated that the application under Section 45 of the Delhi Rent Control Act was filed by the respondent in accordance with the legal advice received by her. It is submitted that it is nowhere stated in the application that Mr. Mehrulzama is landlord of the respondent. It is averred that the rent has never been paid by the respondent to Mr. Mehrulzama or to the petitioners since there is no relationship between the petitioners and the respondent of landlord and tenant.
27. It is stated that the petitioners do not bonafide and genuinely need the tenanted premises. The respondent also denied other averments of the eviction petition and prayed that eviction petition be dismissed.
28. Petitioners filed replication wherein the averments of the eviction petition were reiterated and reaffirmed and those of the written statement were denied as false and incorrect. It is stated in the replication that even in the order by which leave to defend application of the respondent was allowed, it was held that there is a relationship of landlord and tenant between the petitioners and the respondent. It is stated that petitioner no. 2 was held to be the owner of the property. It is stated that after filing of the present case, Mst. Eviction petition No.168/13 (New No.79362/16) Page 9 of 39 10 Aasma also relinquished her share in the tenanted premises in favour of petitioner no. 2. It is submitted that now only the petitioner no. 2 is owner of the tenanted premises.
29. It is stated that the suit no. 661/2008 was filed under misconception and was withdrawn after realizing the mistake.
30. It is averred that the suit no. 1984/87 was dismissed because the respondent was held to be a tenant and not a trespasser. It is stated that since the respondent was held to be a tenant, the present petition has been filed.
Evidence led by the parties.
31. In order to prove the case, the petitioners examined petitioner no.2 as PW-1. He tendered his evidence by way of affidavit as Ex. PW-1/A. Following documents were relied upon and proved by the petitioner no.2:-
(i) Ex.PW-1/1 is the site plan (ii) Ex.PW-1/2 is the copy of sale deed (iii) Ex.PW-1/3 is the attested copy of Section 45 petition filed by the respondent Rehana against Sh. Mehrulzama Eviction petition No.168/13 (New No.79362/16) Page 10 of 39 11 (iv) Ex.PW-1/4 is the copy of election card (v) Ex.PW-1/5 is the photocopy of aadhar card of Ms. Shakra wife of PW-1 (vi) Mark P-1 is the photocopy of progress report of the daughter of PW-1 (vii) Ex.PW-1/7 is the photocopy of aadhar card of Ms. Kamru Nisha Firoza, mother of PW-1
(viii) Ex.PW-1/8 is the photocopy of ration card of Mr. Saleem, brother of PW-1
(ix) Ex.PW-1/9 is the photocopy of relinquishment deed dated 31.12.2012
(x) Ex.PW-1/10 is the photocopy of relinquishment deed dated 26.09.2014 in favour of PW-1
32. Despite opportunity, the respondent did not lead any evidence.
33. After leading of evidence and at the stage of addressing final arguments, the petitioner no. 2 died. An application under O. 22 R. 3 r/w Section 151 CPC was filed and allowed by the Ld. Predecessor of the Court by order dated 06.09.2017. The wife and daughters of petitioner no. 2 were brought on record in place of petitioner no. 2. The order dated 06.09.2017 has not been challenged and has attained finality.
Eviction petition No.168/13 (New No.79362/16) Page 11 of 39 12
34. I have heard arguments and carefully gone through the record. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the Delhi Rent Control Act, the petitioners must establish that:-
i. They are owners and landlords in respect of the tenanted premises.
ii. They require the premises bonafide for themselves or for any member of their family dependent upon them.
iii. They have no other reasonably suitable accommodation.
Ownership of tenanted premises and relationship of landlord-tenant between petitioners and respondent:
35. The respondent has denied the relationship of landlord and tenant between the parties. The respondent has admitted in the written statement that her father and her grandfather were tenants in the premises. In view of the submission, it can be inferred that the respondent is also in possession of the premises in the capacity of a tenant, having succeeded to the tenancy after demise of Mr. Ahsaanullah.
36. Even though the respondent has denied that the petitioners are owners and landlords of the tenanted premises, she has not clarified as to who is the owner and landlord, if not the petitioners herein. Therefore, the denial of the Eviction petition No.168/13 (New No.79362/16) Page 12 of 39 13 respondent of the ownership of the petitioner no. 2 appears to be a bald assertion.
37. Even otherwise, the petitioner no. 2 has proved the sale deed by which his father purchased the tenanted premises from the erstwhile owner, as Ex.PW-1/2. Even though the respondent has alleged that this sale deed was got executed by the father of the petitioner no. 2 fraudulently, it has not been clarified as to what fraud or misrepresentation was done by the father of the petitioner no. 2. It is not the case of the respondent that she or her ancestors ever sought cancellation or setting aside of the sale transaction.
38. The petitioner no. 2 has also proved certified copy of a petition filed by the respondent under Section 45 of the Delhi Rent Control Act as Ex.PW-1/3. This petition was filed by the respondent herein against Mr. Mehrulzama @ Babu. The following are relevant contents of this petition filed by the respondent:-
"9. That the legal position remains that the petitioners has become a tenant by operation of law under the respondent on the same terms and conditions alongwith other legal heirs of late Sh. Ahasan Ullah in the tenancy premises of Late Sh. Ahsan Ullah
10.That the respondent who too has stepped in the Eviction petition No.168/13 (New No.79362/16) Page 13 of 39 14 shoes of earlier owner/landlord is also bound by this well settled legal propositions but he is taking advantage of his power and wants to get the tenanted premises vacated from the petitioner some how or other as the rents in the locality have gone higher.
17.That the respondent/landlord has without just and sufficient cause withheld the above noted essential supplies..."
39. The aforesaid are the admissions made by the respondent by which she has accepted Mr. Mehrulzama, predecessor-in-interest of the petitioners as the owner and landlord of the tenanted premises. She is now estopped from challenging the title of the petitioners over the tenanted premises.
40. It is contended by the respondent that in the previous litigations between the petitioners/their predecessor-in-interest and the respondent, contradictory stands were taken. The Court is of the opinion that no adverse inference can be drawn against the petitioners for not acknowledging the respondent as a tenant in the previous cases filed by them/their predecessor-in-interest. It has been stated that the suit no. 1984/87 was dismissed as the respondent was held to be a tenant and not a trespasser. It is contended that because of this observation of the Court that the respondent is a tenant, the present petition has been filed.
Eviction petition No.168/13 (New No.79362/16) Page 14 of 39 15
41. Even otherwise, it is observed that the petitioners or their predecessor- in-interest never took a contradictory stand with respect to their status in the tenanted premises. They always asserted their right of ownership over the premises.
42. Even if the LRs of Mr. Mehrulzama earlier called upon the respondent to attorn petitioner no. 1 as her landlady, it was prior to 31.12.2012. Till this date, all the LRs of Mr. Mehrulzama including petitioner no. 1 were co-owners and co-landlords of the property. It was on 31.12.2012 that the LRs including petitioner no. 1 relinquished their right in the tenanted premises in favour of petitioner no. 2. The registered relinquishment deed dated 31.12.2012 has been proved by petitioner no.2 as Ex. PW-1/9.
43. It is contended by the respondent that the present case is barred by Section 14(6) of the Delhi Rent Control Act as the legal heirs of Mr. Mehrulzama@ Babu relinquished their share in the property in favour of the petitioner no.2 on 31.12.2012. In this context, it is observed that even prior to 31.12.2012, the petitioner no.2 was co-owner of the tenanted premises. A co- owner can also institute a petition seeking eviction of the tenant under the Delhi Rent Control Act. Reference may also be made to decisions passed in Eviction petition No.168/13 (New No.79362/16) Page 15 of 39 16 the cases of Kanta Goel v. B.P. Pathak AIR 1977 SC 1599 and Pal Singh vs. Sunder Singh AIR 1989 SC 758. Thus even being a co-owner, the petitioner no.2 was complete owner in respect of the entire property and he was competent to file the present eviction petition against the tenant without joining the other co-owner and he is to be considered as an owner for the purposes of section 14 (1) (e) of the Delhi Rent Control Act. It is not that on 31.12.2012, he acquired the tenanted premises and therefore rights of a landlord. Even prior to this date, he was a owner and landlord of the premises. Therefore, Section 14(6) of the Delhi Rent Control Act does not bar the filing of the present case. In this context, reliance is placed on the decision of the Hon'ble High Court of Delhi in the case of Smt. Nand Kaur and Ors. Vs. Pandit Taleshwar Ji SAO No. 299 of 1969 decided on 07.05.1971. It was held in this case that relinquishment of right by a co-owner in favour of other co-owners is not a transfer contemplated by Section 14(6) of the Delhi Rent Control Act. It was held that a petition for eviction before expiry of five years from relinquishment is maintainable.
44. The petitioner no.2 testified that during pendency of the present case, Mst. Asma (daughter of petitioner no.1 and sister of petitioner no.2) relinquished her share in the tenanted premises in favour of the petitioner Eviction petition No.168/13 (New No.79362/16) Page 16 of 39 17 no.2. The relinquishment deed dated 26.09.2014 has been proved as Ex.PW-1/10. In view of this testimony, the petitioner no.2 is now the sole owner and landlord of the tenanted premises. However, even prior to Mst. Asma relinquishing her share in favour of the petitioner no.2, the present case filed by the petitioner no.2 without impleading Mst. Asma was maintainable. It has already been held hereinabove that a co-owner is also competent to file an eviction petition.
45. No evidence has been led by the respondent for establishing that for purchase of the tenanted premises by Mr. Mehrulzama, money was also given by her mother and brother. There is no reason to believe this self serving statement. Also, even if some payment was made by the mother and brother of the respondent, it is not the allegation of the respondent that there was an understanding between Mr. Mehrulzama and mother/brother of the respondent that the mother/brother shall also be co-owners in the premises. The sale deed is registered in favour of Mr. Mehrulzama and no evidence has been led for proving that he was not the sole owner of the premises. Reference is also made to Sections 91 and 92 of the Indian Evidence Act which bars leading of any evidence of any oral agreement or statement for contradictory or varying terms of a contract reduced to the form of a Eviction petition No.168/13 (New No.79362/16) Page 17 of 39 18 document.
46. Ld. Counsel for the respondent has drawn the attention of the Court to the testimony of petitioner no. 2 in which he has stated that it is his mother who is the owner of the tenanted premises. It is submitted that on one hand, petitioner no. 2 claims to be the owner and on the other hand, he states that his mother is the owner.
47. In this regard, the Court is of the opinion that the testimony of petitioner no. 2 cannot be read in part. It has been clarified by petitioner no. 2 that his mother has relinquished her interest in the property in his favour.
48. Ld. Counsel for the respondent has also drawn the attention of the Court to the testimony of petitioner no. 2 during his cross-examination whereby it has been admitted by him that the respondent has the same share in the tenanted premises as the predecessor-in-interest of the petitioners, namely, Mr. Mohd. Mehrulzama had. It is argued that the petitioner no. 2 has thus admitted that the respondent has the same interest in the tenanted premises as the petitioners have. It is therefore submitted that there is an admission on part of the petitioners that their right in the tenanted premises is the same as the right of the respondent.
Eviction petition No.168/13 (New No.79362/16) Page 18 of 39 19
49. In this context, the Court is of the opinion that the aforesaid alleged admission of petitioner no. 2 does not nullify the effect of the sale deed Ex.PW-1/2 executed in favour of the predecessor-in-interest of the petitioners. It is evident from this document that it was the predecessor-in-interest of the petitioners who was the owner of the tenanted premises. After his demise, his interest devolved upon the petitioners herein.
50. There is no reason to disbelieve the testimony of petitioner no. 2 that after demise of Mr. Mehrulzama, the petitioner no. 2 and other legal heirs of Mr. Mehrulzama became co-owners and co-landlords of the tenanted premises. Accordingly, I am of the opinion that the petitioner no. 2 is competent to have filed the present eviction petition as he is the owner as well as landlord in respect of the tenanted premises for the purpose of section 14 (1) (e) of Delhi Rent Control Act. The petitioner no. 2 has successfully proved that there exists a relationship of landlord and tenant between him and the respondent herein in respect of the tenanted premises. Requirement of premises bonafide by the petitioner no.2 for himself and for his family members dependent on him for residence and non-availability of any other reasonably suitable accommodation:
51. The respondent has alleged that the petitioners do not bonafide need Eviction petition No.168/13 (New No.79362/16) Page 19 of 39 20 the tenanted premises for the residence of their family. It is argued by Ld. Counsel for the respondent that the married sisters, married brothers and mother of petitioner no. 2 who relinquished their share in the tenanted premises in favour of petitioner no. 2 are not dependent upon petitioner no. 2. It is submitted that if they indeed required the premises, they would not have surrendered their right in the premises in favour of petitioner no. 2.
52. The Court is of the opinion that merely because the family members of petitioner no. 2 relinquished their right in the tenanted premises in favour of petitioner no. 2 does not imply that they are no longer dependent upon petitioner no. 2 for residence. Relinquishment of the right was the internal matter of the family. It was not a transaction between some outsiders. It is possible that since the family members of petitioner no. 2 trusted petitioner no. 2, they relinquished their share in the premises without fearing that they shall no longer have legal right in the premises after relinquishment. Moreover, the petitioner no. 2 was not questioned during cross-examination as to why his family members relinquished their share in the tenanted premises despite requiring it for their residence. Had the witness been cross- examined on this aspect, he would have explained the circumstances under which relinquishment was done. The Hon'ble High Court of Delhi in the case Eviction petition No.168/13 (New No.79362/16) Page 20 of 39 21 of Maj. Gen. A.K. Verma & Anr. Vs. Narinder Singh 110 (2004) DLT 226 held that merely because relinquishment deed was executed by a married sister in the name of the landlord does not imply that she is not dependent on him for purposes of residing.
53. In this regard, the Court is of the view that dependence of family members is not always financial or physical. In the context of section 14(1)(e) of the Delhi Rent Control Act in which the legislature has consciously use the words 'any member of family dependent on the landlord', dependency includes emotional reliance on another person. There can be no document which states that the mother, married brother and married sisters are dependent on the petitioner no. 2.
54. From the identity card issued by Unique Identification Authority of India to petitioner no. 1 proved as Ex.PW-1/7, it is evident that petitioner no. 1 is residing with the petitioner no. 2 in premises no. 4115. Also, from the ration card of Mr. Mohd. Saleem proved as Ex.PW-1/8, it is evident that he, his wife and his children are also residing with the petitioner no.2 in this property. Ration card is a public document and there is no reason to doubt the authenticity of this document. Reference is made to the case of Dipika Arora Eviction petition No.168/13 (New No.79362/16) Page 21 of 39 22 Vs. S.N. Sehgal 58 (1995) DLT 729. By virtue of the fact that these persons are residing with petitioner no. 2, it is clear that they are dependent upon the petitioner. The following was held by the Hon'ble High Court in the case of Naresh Khanna Vs. Saroj Gupta RC Rev. 281/2017 dated 28.08.2017:-
"...The said question is no longer res integra and it has been settled that the words 'requirement of the landlord' within the meaning of Section 14(1)(e) of the Act is not only confined to requirement of the landlord but of all members of the family of the landlord who are dependent upon the landlord for accommodation and with whom landlord is residing as a family or who constitute family of landlord. It is for this reason only that eviction under Section 14(1)(e) of the Act has been ordered for the requirements of financially well off sons as well. In the present case, the plea of the respondent/landlady in the petition for eviction is that the shop in the tenancy of the petitioner/tenant is required to enable her daughter-in-law who have been doing the work of sale of garments from their residence, to set up a boutique.
...It was yet further held that dependence may not in all circumstances be entirely a matter of finance. Again in J.L.Mehta Vs. Hira Devi (1970) 6 DLT 484 it was held that what constitutes a family in a particular society depends upon the habits and ideas of persons constituting that society and the religious and socio religious customs of the community to which such persons may belong. It was thus held that the requirement of the family of the brother of the landlord residing with the landlord would also be the requirement of the landlord. It was further held that the requirement of the landlord "himself" cannot be considered by excluding the requirement of other persons with whom the landlord is habituated to residing us a family. To the Eviction petition No.168/13 (New No.79362/16) Page 22 of 39 23 same effect is the judgment of the Division Bench of this Court in Gobind Dass Vs. Kuldip Singh ILR (1970) I Delhi
585. Supreme Court in Joginder Pal Vs. Naval Kishore Behal (2002) 5 SCC 397 approved of the view taken in J.L.Mehta supra as well as in Krishna Devi Vs. Parmeshwari Devi (1977) 2 RCJ 529 where requirement of the family of the married daughter was also considered as a requirement of the landlady. It was further held that the words "for his own use" cannot be construed narrowly. Again, in Kailash Chand Vs. Dharam Das (2005) 5 SCC 375 it was held that the expression "his own occupation"
has to be liberally construed and given a practical meaning and does not mean occupation by the landlord himself only. Recently in Bhupinder Singh Bawa Vs. Asha Devi (2016) 10 SCC 209 also the requirement of premises for the business of the son already engaged in one other business was held to be the requirement of the landlord. Reference in this regard may also be made to my judgment dated 17th July, 2017 in RC. Rev. No. 315/2017 titled Asha Sawhney Vs. Kamini Gupta and to Anil Kumar Gupta Vs. Deepika Verma (224) 2015 DLT 473 and Labhu Lal Vs. Sandhya Gupta (2010) 119 DRJ 599. The latter two were also cases of requirement of the daughter-in-law residing with the mother-in-law. Mention may also be made of M/s. Jhalani Tools (India) Pvt. Ltd. Vs. B.K.Soni AIR 1994 Del 167 and Santosh Kumari Mehra Vs. Om Prakash (2015) 221 DLT 578 (SLP (C) No. 20970/2015 preferred where against was dismissed on 15th January, 2016), both of which were cases of requirement for financially independent sons and grand children of the landlord."
55. In the case of Anil Kumar Gupta Vs. Deepika Verma RC Rev. 138/2015 dated 14.10.2015, the Hon'ble High Court of Delhi held the following:
"12.Customarily or in common parlance a dependent would Eviction petition No.168/13 (New No.79362/16) Page 23 of 39 24 be defined as any person who is reliant on another either for financial or physical support for sustenance of life. It is pertinent to note that the word dependent or as to what constitutes a family has nowhere been defined in the Delhi Rent Control Act. Rather the legislators consciously and deliberately have used the words "any member of family dependent on the landlord" instead of defining a clear degree of relations so as to construe a wider meaning to the aforesaid words as man is a social creature and part of a complex societal system involving myriad of relations from which he cannot be isolated. It is significant to understand that the dependency is not restricted to financial or physical but will also include emotional reliance on another person. Reliance in this regard is placed on the findings of this court in M/s Jhalani Tools (India) Pvt. Ltd. Vs. B.K.Soni; AIR 1994 Delhi 167, wherein the court observed that the social set up of our society is such where a married daughter continues to enjoy a place of pride in her maternal home and therefore while considering the requirement of the landlord her married daughter and her expected visits cannot be lost sight of. Similarly in Sain Dass Vs. Madan Lal; 1972 Ren CJ (SN) 8 (Delhi), this Court has acknowledged that the word "himself" as cohabiting with his family members with whom he is normally accustomed to live. Therefore, contrary to the submissions of the learned counsel for the petitioner financial or physical incapacitation cannot be the sole premises for determining dependency on another."
56. In the case of Manju Devi Pratap Singh RC Rev. No. 375/2014 dated 23.02.2015, the Hon'ble High Court of Delhi held the following:
"10. The Supreme Court in Joginder Pal Vs. Naval Kishore Behal (2002) 5 SCC 397 while dealing with a similar provision under Section 13(3) (a) (ii) (a) of the East Punjab Eviction petition No.168/13 (New No.79362/16) Page 24 of 39 25 Urban Rent Restriction Act, interpreted the expression, "for his own use" and held-
"24. We are of the opinion that the expression "for his own use" as occurring in Section 13(3)(a) (ii) of the Act cannot be narrowly construed. The expression must be assigned a wider, liberal and practical meaning. The requirement is not the requirement of the landlord alone in the sense that the landlord must for himself require the accommodation and to fulfill the requirement he must himself physically occupy the premises. The requirement of a member of the family or for a person on whom the landlord is dependent or who is dependent on the landlord can be considered to be the requirement of the landlord for his own use. In the several decided cases referred to hereinabove, we have found the parimateria provisions being interpreted so as to include the requirement of the wife, husband, sister, children including son, daughter, a widowed daughter and her son, nephew, coparceners, members of family and dependents and kith and kin in the requirement of landlord as : "his" or "his own requirement and user."
57. In the case of Shakuntala Gupta Vs. Surender Kumar, 53 (1994) DLT 767, the question arose before the Hon'ble High Court of Delhi whether the son of the landlady could be considered as living with her for the purposes of Section 14(1)(e) of the Delhi Rent Control Act. In this case, the sons were having a separate kitchen and were independent income tax assesses. The Hon'ble High Court held that a children being independent assesses is entirely irrelevant. Also, it was held that they having separate ration cards cannot be a ground to hold that they are living separately from their mother. It was Eviction petition No.168/13 (New No.79362/16) Page 25 of 39 26 observed that all of them were residing in the same building. It was held that those who normally reside with the landlord are considered as part of his family.
58. In the case of Maj. Gen. A.K. Verma & Anr. Vs. Narinder Singh 110 (2004) DLT 226, it was held that a married brother who has been residing with the landlord for one reason or the other cannot be held as non-dependent for the purpose of residence. It was held that only that person is not dependent for the purpose of residence who has an independent accommodation or house by virtue of being its owner. In the present case, the respondent has not led any evidence for even averred that the brother of petitioner no. 2 has a separate accommodation. It is also not the case of the respondent that petitioner no. 1 has a separate accommodation available with her. Therefore, petitioner no. 1 and married brother of petitioner no. 2 and his family shall be deemed to be dependent upon petitioner no. 2 for the purpose of residence.
59. In the case of Amrit Lal Vs. Jagpal Singh Verma CR No. 370 of 1985 dated 25.07.1996, the Hon'ble Delhi High Court held that even a child of 9 years of age cannot be expected to sleep in the same room where his parents were sleeping. Therefore, the requirement of PW-1 for having a separate Eviction petition No.168/13 (New No.79362/16) Page 26 of 39 27 room for his daughters who would currently be 11 and 6 years of age is bonafide. Also, the youngest of the three children of Mr. Mohd. Saleem would currently be 20 years of age. Therefore, the requirement of having separate rooms for each of the children of Mr. Mohd. Saleem is reasonable. Judicial notice can be taken on fact that the eldest child of Mr. Mohd. Saleem is of marriageable age and therefore, the requirement of the family for accommodation is likely to increase soon.
60. In the case of Vinod Kapoor Vs. Kailash Sethi, 2008 RLR 576, the Hon'ble High Court held that the requirement of a guest room is bonafide. It was observed that it is not necessary for the landlord to cramp himself with the available accommodation so that his tenants continue to live in the premises. It was observed that when the family of the landlord grows, the requirement of the landlord and his family members is bonafide requirement. In this case, the landlady had expressed her desire to have a separate pooja room which was found to be bonafide by the Hon'ble High Court of Delhi. Even in the case of Sudesh Kumar Soni and Anr. Vs. Prabha Khanna & Anr. 153 (2008) DLT 652, it was held that a drawing room, pooja room and guest room are bare necessities for a comfortable living. It was observed in this case that in the case of Tilak Raj Vs. Krishan Lal 1982 RLR Note 33, it was Eviction petition No.168/13 (New No.79362/16) Page 27 of 39 28 held that the landlord is entitled for some accommodation for his married daughters who keep on visiting his own. Similar were the observations of the Hon'ble High Court of Delhi in the case of Ranjit Kumar Chopra Vs. Virinder Khosla 155 (2008) DLT 658. It was also held in this case that the tenant or the Court cannot impose their own standards and cannot compel the landlord that he should keep on living in the premises in his occupation.
61. Even in the cases of Mahendra Trivedi Vs. Jai Prakash Verma 157 (2009) DLT 690 and Ram Pratap Sharma Vs. Smt. Rukmani Devi 82 (1999) DLT 878, it was held that requirement for a separate pooja room is bonafide.
62. In the case of Smt. Vijay Jain Vs. LIC of India 2000 RLR 69, the Hon'ble High Court of Delhi held that every landlord is entitled to rooms for guests, friends and relatives. It was held that landlord is entitled to a drawing room and a dining room.
63. With respect to the married sisters of petitioner no. 2, it is contended by the petitioner no. 2 that the married sisters, their respective husbands and their children are dependent upon petitioner no. 2 only for the purpose of their visits and their stay. The requirement of the petitioners for the family of married sisters is only for their temporarily residence in the property when Eviction petition No.168/13 (New No.79362/16) Page 28 of 39 29 they are visiting. This requirement cannot be stated to be fanciful or excessive. It is normal for married sisters and their family to occasionally reside in the property where their mother is residing.
64. Therefore, in view of the aforesaid decisions, the requirement for having two bedrooms for five married sisters and their respective families for use during their visits and for a separate guest room is also bonafide. In view of these decisions, the requirement for a separate drawing room, separate dining room and a separate namaz room are also reasonable. The children of petitioner no. 2 and of his brother Saleem are stated to be students. The requirement for having a separate study room cannot be said to be excessive. Also, during cross-examination of PW-2, not even a suggestion was put to him that there is no bonafide requirement for having a separate study room.
65. In the case of Harivansh Lal Vs. Madan Lal 65 (1997) DLT 4804, it was held that each married son needs atleast two rooms. The following was held in this case:
"13. Married sons require at least two rooms-one for himself and his wife and another for adjusting articles and remaining visitors."Eviction petition No.168/13 (New No.79362/16) Page 29 of 39 30
66. Therefore, the requirement for having two bedrooms for petitioner no. 2 and his wife is reasonable. Similarly, two rooms should be also made available to Mr. Mohd. Saleem and his wife. It is reasonable for there to be a separate bedroom for petitioner no. 1.
67. Therefore, the requirement for having fourteen rooms for the petitioner no. 2 and his family dependent upon him for accommodation is held to be bonafide.
68. Now it shall be determined as to how many rooms are currently available with the petitioner no. 2 for his stated requirements. Site plans have been filed by both the parties. The site plan filed by the petitioners has been proved as Ex.PW-1/1 and the one filed by the respondent has been identified as Ex.PW-1/D1. During course of arguments, Ld. Counsel for the respondent clarified that both the site plans are identical and the only difference between the two is that the rooms described in the site plan Ex.PW-1/1 as store rooms have been defined as rooms in the site plan Ex.PW-1/D1. It is the case of the respondent that the rooms defined as store rooms are actually rooms which can be used for living. Per contra, Ld. Counsel for the petitioners have argued that the rooms stated as store rooms cannot be used for living as they are Eviction petition No.168/13 (New No.79362/16) Page 30 of 39 31 small in size and less than 100 sq. ft. It is further argued by Ld. Counsel for the petitioners that since the rooms described as store rooms have entrance from another room, they cannot be used for living as they do not have a separate entrance.
69. It is not in dispute that the portions shown in yellow and green color are in possession of the petitioners and petitioner no. 2's brother Saleem. The measurements of the rooms are also not in dispute. It is also not in dispute that the portion on the second floor shown in yellow color is an open terrace without having any construction on it. Since there is no construction on it, this space cannot be considered as available for residence of the family of petitioner no. 2. The landlord cannot be expected to carry out construction and make more accommodation available for itself for use.
70. In the case of Benson Shoes Vs. Chunni Lal Takkar 167 (2010) DLT 678, the Hon'ble High Court of Delhi held that only a room measuring 100 sq. or more is a habitable living room. In view of this decision, none of the rooms described as store rooms in the site plan Ex.PW-1/1 can be held to be habitable living rooms, except for the store room on the ground floor measuring 12'6" x 8'6". It was also held in this case of Benson Shoes that if Eviction petition No.168/13 (New No.79362/16) Page 31 of 39 32 doors of different rooms open in a place and the place is used as a passage by the occupants of different rooms, the place cannot be termed as a room. The Hon'ble High Court was considering whether lobby can be counted as a separate room. It was held that a room is a place where a person can live in privacy. In view of this observation of the Hon'ble High Court, all rooms defined as store rooms in site plan Ex.PW-1/1 cannot be considered to be living rooms since to enter such rooms, one has to pass through another room which is admittedly habitable. However, there is one exception. The entry to the store room on the ground floor measuring 12'6" x 8'6" is not through another habitable room. Therefore, it cannot be said that an occupant of this alleged store room will not have privacy. This Court is of the opinion that the room measuring 12'6" x 8'6" on the ground floor is habitable and can be used as a living room.
71. Ld. Counsel for the respondent has argued that PW-1 has admitted during his cross-examination that in the 234 sq. yards property owned by him, there are fourteen rooms. It is submitted that there is an admission by petitioner no. 2 that there are fourteen rooms in the property no. 4115. However, the Court is of the opinion that this argument of the Ld. Counsel for the respondent is misconceived. PW-2 has explained during his Eviction petition No.168/13 (New No.79362/16) Page 32 of 39 33 cross-examination how all these fourteen rooms are not entirely in his possession.
72. In view of the aforesaid discussions, the Court is of the opinion that the petitioner no. 2 and his family dependent upon him for accommodation have two habitable rooms on the ground floor, two habitable rooms on the first floor and one habitable room on the second floor. The total available habitable rooms are therefore five. Requirement is for fourteen such rooms. It is therefore, held that the petitioner no. 2 and his family do not have sufficient accommodation in property no. 455, Nala Road, Gali Barna, Sadar Bazar, Delhi.
73. After demise of petitioner no. 2, there are nine family members of petitioner no. 2 for whom residential accommodation is under consideration before the Court. These nine family members are besides the five married sisters of petitioner no. 2 and their respective families. The habitable rooms for these nine family members and for the five married sisters are only five. In the case of Sudesh Kumar Soni & Anr. Vs. Prabha Khanna & Anr. 153 (2008) DLT 652, the Hon'ble High Court observed that a large family of twelve members cannot be accommodated in six rooms. Therefore, even in view of Eviction petition No.168/13 (New No.79362/16) Page 33 of 39 34 his decision, the number of rooms available with the petitioner no. 2 and his family members is not sufficient.
74. Ld. Counsel for the respondent has also argued that just around one month prior to filing of the present eviction petition, the petitioner no. 2 sold a portion of the premises no. 4115 to Mst. Nargis Begum, Mst. Shahjahan Begum, Mst. Nasreen Begum and Mst. Kausar Begum. It is pointed out that a portion of the property was also gifted by the father of petitioner no. 2 through petitioner no. 1 to Mr. Qamaruzama and Mrs. Razia Begum, on 03.07.2003. It is argued that if the petitioner no. 2 and his family indeed required more accommodation, parts of the property no. 4115 would not have been sold and gifted.
75. In this context, the petitioner no. 2 has testified and clarified that the portions which were sold and gifted were already in possession of the persons to whom they were sold/gifted. There is no reason to doubt the testimony of petitioner no. 2 that the portions of property no. 4115 which were alienated were not vacant. Therefore, it cannot be said that artificial scarcity has been created by petitioner no. 2 by creating third party interest in property which was vacant and available with him and his family.
Eviction petition No.168/13 (New No.79362/16) Page 34 of 39 35
76. Besides making self-serving assertions in the written statement that the petitioner no. 2 and his family have sufficient residential accommodation with them, no credible material which can be believed by the Court has come on record for the Court to even have a prima facie opinion that the petitioners have alternative suitable accommodation. If such oral assertions are believed and on its basis, eviction petitions are dismissed, in all cases, the respondents will be successful in having the case dismissed by merely alleging that the landlord has other properties available. In the cases of Rajender Kumar Sharma v. Smt. Leela Wati 155 (2008) DLT 383, Sarwan Dass Bange Vs. Ram Prakash, 161 (2010) DLT 80, K.K. Sarin Vs. M/s Pigott Chapman & Co. 46 (1992) DLT 352 and Mohd. Naseer Vs. Mohd. Zaheer and Anr. RC Rev. No. 267/2016 dated 03.11.2016, the Hon'ble High Court of Delhi held that the respondents/tenants have to place on record some material in support of the assertions made by them about availability of alternative suitable accommodations. Having failed to do so, it shall be presumed that the number of rooms stated by the petitioner no. 2 to be available with him and his family for residence is correct.
77. The prime question to be answered is that whether the tenanted premises is required bonafide by the landlord for the use of his family's Eviction petition No.168/13 (New No.79362/16) Page 35 of 39 36 residence which is dependent upon him for residence. The petitioner no.2 has contended that the accommodation currently available for his family's residence is not sufficient and therefore tenanted premises is required. The respondent has disputed the alleged claim of the petitioners of bonafide need and have stated that the current place of residence of the family of the petitioner no. 2 is sufficient for their requirement. In the case of Ragavendra Kumar vs. Firm Prem Machinery AIR 2000 SC 534, the Hon'ble Supreme court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference may also be made to the case of Prativa Devi (Smt) v. T.V. Krishnan (1996) 5 SCC 353.
78. In view of the settled legal position it is not for the respondent to dictate to the petitioners that the family of petitioner no. 2 should continue residing in whatever accommodation is available with them. The tenanted premises belongs to the petitioner no. 2 and it is for him to see as to how he can manage his family. It is the right of the petitioner no.2 to look after his family and if the tenanted premises is required for their needs, he has every right to possess the said premises and the respondent cannot contend that he should manage his family otherwise. While deciding the question of bonafide Eviction petition No.168/13 (New No.79362/16) Page 36 of 39 37 requirement of the landlord, it is quite unnecessary to make an endeavor as to how else the landlords could have adjusted and use a property other than the tenanted premises.
79. In case the petitioners fail to occupy the premises as has been claimed by them, the Delhi Rent Control Act provides for recovery of possession by the respondent/tenant of the tenanted premises for her re-entry and occupation. It has also been the observation of the Hon'ble High Court in the aforesaid case of M/s A.K. Woolen Industries & Ors. that section 19(2) of the Rent Act of Delhi provides a remedy to the tenant of repossession, if the landlord is not in use of the premises after obtaining an order of eviction against the tenant on the ground of the requirement of the premises for own use.
80. No contradiction or anomaly has been noticed in the testimony of the petitioner no.2 with regard to his requirement for his family and non-availability of alternative suitable accommodation.
81. The respondent has contended that the petitioners have concealed material facts. The Hon'ble High Court in the case of Kishan Kumar Dua Vs. Girdhar Gopal Gupta RC Revision No. 417/2017 dated 05.09.2017, held that Eviction petition No.168/13 (New No.79362/16) Page 37 of 39 38 for the falsehood, if any practiced by the landlord, the landlord has already suffered by being unable to have the order of eviction under the summary procedure and having to wait for several years. It was held that the landlord cannot be penalized more than that by denying him even at this stage the order of eviction, if otherwise found entitled to.
82. In another recent case of Nalini Kant Gupta Vs. Lajja Gupta, 2017 SCC Delhi 10247, it was held that once the tenant has had full opportunity and the parties have gone to trial on all facts, the petition for eviction for self requirement cannot be dismissed on the ground of suppression. It was held that the argument of concealment is not available in as much as no prejudice can be said to have been suffered by the tenant after having an opportunity to lead evidence on all pleas.
83. The testimony of the petitioner no.2 has been coherent and consistent. There is no reason to disbelieve the case of the petitioners. The net result is that petitioners have been able to establish that the tenanted premises is required bonafide for use of the family of petitioner no. 2 dependent upon him for accommodation and that they have no other reasonably suitable alternative accommodation in their possession. The petitioners are entitled to Eviction petition No.168/13 (New No.79362/16) Page 38 of 39 39 an eviction order for the portion shown in the site plan Ex.PW-1/1 in red colour. Accordingly, the eviction petition is allowed and order is passed in favour of the petitioners and against the respondent directing the respondent to vacate the tenanted premises i.e. two tin-shed rooms, one room with open space/courtyard and bathroom/W.C. on the first floor of property no. 4115, Nala Road, Gali Barna, Sadar Bazar, Delhi-110006, more specifically shown in red colour in the site plan filed by the petitioner i.e. Ex. PW1/1, in terms of Section 14 (1) (e) of the Delhi Rent Control Act. The landlords however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.
84. No order as to costs. File be consigned to Record Room.
Digitally
signed by
Shirish
Shirish Aggarwal SHIRISH AGGARWAL
Aggarwal Date: ARC-I, Central District,
2018.12.24
17:10:51 Tis Hazari Courts, Delhi
+0530
(Announced in open court
on 24.12.2018 )
Eviction petition No.168/13 (New No.79362/16) Page 39 of 39