Delhi High Court
Jeewan Kumar Khanna vs Ajudhia Pershad Murgai And Ors. on 2 November, 1987
Equivalent citations: 34(1988)DLT355, 1988(14)DRJ161
JUDGMENT P.K. Bahri, J.
(1) This revision petition has been brought under Section 25-B(8) of the Delhi Rent Control Act (hereinafter referred to as 'the Act') against an order dated December 1 1, 1986, of Shri A.K. Garg, Additional Rent Controller, by which he had dismissed the eviction petition brought by the petitioner on the ground of bonafide requirement for residence for himself and his family members covered by Clause (e) of Sub-section (1) of Section 14 of the Act.
(2) Facts, in brief, are that the petitioner's father Duni Chand had inducted Daulat Ram, predecessor-in-interest of the respondents, as a tenant in the house No. 313/31-J, plot No. 60, Block-A, Inder Lok, Sarai Rohilla, Delhi, at the rental of Rs. 43.00 per mensern in the year 1960. Duni Chand Along with his family members was residing jointly with his brother-in- law Dewan Chand, AW3, at first in some railway, quarter allotted in the name of Dewan Chand and thereafter in a house belonging to Dewan Chand bearing Municipal No. 10698, Andha Mughal, Sabzi Mandi. During his life time, Daulat Ram had died and Duni Chand had brought an eviction petition on .the ground of bonafide requirement for residence only against Ajudhia Pershad, one of the sons of Dadlat Ram. Daulat Ram had left behind two sons, namely, Ajudhia Pershad and Kedar Nath, widow, namely, Jamna Devi, four daughters, Smt. Vidya Wati, Smt. Kamla Wati, Smt. Pushpa Wati and Smt. Chand Rani. Duni Chand had filed the eviction petition only against Ajudhia Pershad pleading that after the death of Daulat Ram, Ajudhia Tershad alone started paying rent and other heirs of Daulat Ram did not assert their tenancy rights and had impliedly surrendered the same. So, he sought eviction of Ajudhia Pershad from the said premises on the aforesaid ground. The petition was contested by Ajudhia Pershad on the ground that the premises had not been let out for residential purpose only and that Duni Chand was in possession of reasonably suitable accommodation and that Duni Chand did not require bonafide the demised premises for occupation as residence for himself or his family members. This eviction petition was allowed initially by the Additional Rent Controller but in appeal the Rent Control Tribunal had set aside the eviction order on the ground that Ajudhia Pershad was the co-tenant and other heirs of Daulat Ram had not surrendered their tenancy rights and as the other co-tenants have not been imp leaded as respondents in that eviction petition, so the eviction petition was not maintainable. However, a finding was also given that no evidence had been led by Duni Chand to prove that he is the owner of the premises in question.
(3) The appeal was allowed on February 16, 1972. Duni Chand thereafter filed eviction petition against all the heirs of Daulat Ram on the same ground of eviction. But that eviction petition came to be rejected for want of service of notice of eviction as required by Section 106 of the Transfer of Property Act. However, in appeal the Rent Control Tribunal vide judgment dated April 15, 1975, allowed the appeal and remanded the case for redecision and a finding was given by the Tribunal that notice of termination has been proved to have been served on all the co-tenants. On the 26th June, 1986, Duni Chand expired. The petitioner alone on his application was substituted as legal representative of Duni Chand on the basis of the will set up by the petitioner. By virtue of the said will other heirs of Duni Chand, who were his widow and daughters, were excluded from the inheritance. The petitioner then got the eviction petition dismissed as withdrawn with permission to file fresh eviction petition as the petitioner wanted to take advantage of the amended Delhi Rent Control Act which provided for summary trial for eviction case on the ground of personal requirement. The Additional Rent Controller vide his order, copy of which is Ex. AW2/5 allowed the prayer subject to the petitioner depositing certain costs which were deposited vide deposit receipt Ex. Aw 2/6. The petitioner then had instituted the eviction petition on October 6, 1981 on the ground of bonafide requirement. Leave to defend was granted to respondents 1 & 2, who alone appeared before the court in response to the summons while other respondents suffered ex-pane proceedings.
(4) The case set up by the petitioner is that he is the owner-landlord of the premises in question and he bonafide requires the said premises for occupation as residence for himself and his family members which at the time of the filing of the eviction petition included his mother and sister. He also averred that he and his family members were living in the house belong to Dewan Chand and Dewan Chand had desired that he should shift to his own house and he has no legal right to continue to live in the house of Dewan Chand and thus he is not in possession of any alternative reasonably suitable accommodation. He had pleaded that the premises had been let out for residential purposes only.
(5) Respondents 1 & 2 contested the petition pleading that the petitioner is not the sole owner of the property in question and that a finding has been given in the previous case instituted by petitioner's father that the petitioner's father was not owner of the property in question and the said finding operated as resjudicata. On merits it was pleaded that the premises in question have been let out for residential-cum-commercial purpose and the same have been used for the said purpose from the very beginning and that the petitioner has a legal right to live in the house at Andha Mughal and the petitioner is in possession of reasonably suitable accommodation in the said house. It was pleaded that due to spiralling high rents in the locality the petitioner has filed this eviction petition with a malafide motive of evicting the respondents with a view to let out the premises again at a higher rent. After recording evidence the Additional Rent Controller had given the finding that the petitioner is proved to be the sole owner and landlord of the premises in question and that the premises had been let out only for residential purpose and the family of the petitioner now comprises of himself, his wife, child and mother and a sister, but he held that as the petitioner had failed to prove on record that the house at Andha Mughal belongs only to Dewan Chand by not getting produced the documents of title of that house an inference has to be drawn that the petitioner has a legal right to live in that house. So, it is not proved that the petitioner is not in possession of any reasonably suitable accommodation and he dismissed the eviction petition.
(6) As far as the ownership of the premises in question is concerned, the petitioner coming as AW2 proved on record the sale deed (copy Ex. Aw 2/1) showing that the plot of this house was purchased by his father and he deposed that his father had raised the construction in the said house and his father had made a will, certified copy of the same being Ex. Aw 2/2 and he identified the signatures of his father and of two witnesses on the said will and deposed that out of the two attesting witnesses of the will one is dead and the whereabouts of the other witness aie not known. It is pertinent to mention that only Kedar Nath-respondent appeared as Rw 2 and he categorically admitted in cross-examination that the petitioner is the owner of the premises in question. So, it was proved from the admission of the respondent-Kedar Nath that the petitioner alone is the owner of the property in question.
(7) Counsel for the respondents has argued that a finding given in the previous case of eviction by the Rent Control Tribunal that no evidence had been led to prove that Duni Chand was the owner operates as res judicata Before the Additional Rent Controller, copy of the judgment of the Rent Control Tribunal was not produced.. However, in this revision the petitioner has filed an application seeking to produce the certified copy of the judgment of. the Rent Control Tribunal, a perusal of which shows that the eviction petition was dismissed on one of the findings that the petition was not maintainable against one co-tenant without joining the other co-tenants although in the judgment a finding was also given that no evidence had been led by the landlord regarding the ownership of the property in question. However, as the eviction petition shall be deemed to have been dismissed on a technical ground, any finding given on merits of the case would not operate as res judicata in Ram Kishan v. Bharat Bhushan, 1979 Rajdhani Law Reporter 194, it has been held by this court that if the eviction petition is held to be not maintainable on a technical point then any finding given on merits of the case would not operate as res Judicata. I hold accordingly. Be that as it may, even if no evidence was led by Duni Chand in his eviction case to prove his ownership of the premises in question even then any finding given in that respect would not operate as res judicata because admittedly more than 12 years have passed and no other person has come forward to claim title in the property in question and the title of Duni Chand and his heirs in the property in question would have become perfect even by lapse of time. So, I hold that the finding of the Additional Rent Controller that the petitioner is the owner of the property in question is correct.
(8) As far as letting purpose is concerned, it is admitted case that at the time the premises were let out to Daulat Ram, the predecessor-in-interest of the respondents, Daulat Ram was in railway service and obviously he could not have thought of taking the premises in question on rent for any commercial activity. Daulat Ram had a large family and the premises in question comprised of only two rooms. So, they were hardly sufficient for the residential needs of Daulat Ram and his family members. It is pertinent to mention that Kedar Nath who appeared as a witness in earlier eviction petition had categorically admitted in that statement that the premises had never been used for commercial activity. He was duly confronted with his statement, copy of which was produced on record. Even otherwise, the evidence of the respondents to show that the premises had been used for commercial purposes, to say the least, is quite contradictory and does not inspire any confidence regarding its credibility. The only fact got proved on the record is that for postal purposes Kedar Nath had given the address of the premises for his business. Since 1981 he is stated to have been doing some business in the name and style of Intechmaco International. Kedar Nath deposed that he was having some agencies and is carrying on the business of said agencies in the premises in question. According to him, he was having some employees also working in the premises but two witnesses, namely, RW4 J.M.Lal and RW5 Partap Singh deposed that they had not seen any employee working in the premises and Kedar Nath was only doing some liaison work and they had only seen a typewriter lying in the premises. So, apparently the premises had not been used for any commercial activity at any time. The liaison work would not require any use of the premises for commercial purposes. Be that as it may, the fact that Daulat Ram was in Government service leads me to draw an inference that he must have taken the premises in question for residential purpose. Nature of the premises is also residential. The petitioner had categorically stated that the premises were let out in his presence by his father to Daulat Ram and the same was let out only for residential purposes. It was not suggested to the petitioner that he was not present at the time of the letting of the premises. I have no hesitation in believing the petitioner that the premises had been let out for residential purpose and the finding of the Additional Rent Controller in that connection does not call for any interference.
(9) The only finding which has gone against the petitioner is with regard to availability of alternative reasonably suitable residential accommodation. It is significant to mention that respondents 1 and 2 have taken a plea that in view of the fact that Duni Chand with his family members lived jointly with Dewan Chand in Andha Mughal house then it is to be taken that Duni Chand had a right to live in that house. There was no plea taken that the documents of title of that house stand in the name of Dewan Chand and Duni Chand. Dewan Chand appeared as AW3 and made a categorical statement that he alone is the owner of the said house, which is two and a half storeyed building, and in the first floor and the Barsati floor his brother is living while he and the petitioner Along with family are residing on the ground floor jointly and having a joint mess. No suggestion was given in the cross-examination that in fact, the title deed of the said house is not in his name alone. It is not understood how the Additional Rent Controller had come to draw an adverse inference against the petitioner that it was the duty of the petitioner to get produced the title deed of house at Andha Mughal and as the same was not got produced, it is to be inferred that the said title deed must have been in the name of the petitioner's father as well. The title deed was not in possession of the petitioner and there was no law that the petitioner should have got produced such title deed from Dewan Chand. If the respondents were keen to have that document on record they could have asked Dewan Chand to produce the said title deed. No such question was put to Dewan Chand and no prayer was made to the court that Dewan Chand be directed to bring the title deed. As a precautionary measure the petitioner has moved an application in this court for permission to produce on record certified copy of the title deed and permission to call Dewan Chand, who would bring the original title deed which is more than 30 years old which would clearly show that Dewan Chand alone is the owner of the house at Andha Mughal. I would have allowed this application but in view of the fact that the statement of Dewan Chand that he alone was the owner of the house at Andha Mughal was not challenged in the cross-examination, I think there is no need to have any additional evidence to get proved the title deed of the house at Andha Mughal. The Additional Rent Controller was, in my opinion, wrong in drawing adverse inference against the petitioner on this point. He was wrong in giving a finding that the petitioner has any legal right to live in the house of his maternal uncle.
(10) The petitioner now bonafide wants to live in his house with his family members and it is not for the tenant to dictate that the petitioner and his family members should continue to live in the house belonging to their close relation. It may be that Dewan Chand is a bachelor and has strong affectionate ties with the petitioner and the family members of the petitioner but there is no legal bar in Dewan Chand desiring that the petitioner, who is now married and has a child, should shift to his own house. It cannot be held that this was only a made up story to have eviction of the tenant. In Smt. Prativa Deviv. T.V. Krishnan, , the highest court has again reiterated the well settled principle that a landlord must have a legal right to live in a particular premises, only then the said premises could be at all taken into consideration to see whether the same are reasonably suitable for the residence of the landlord. It was also held in this very judgment that it is for the landlord to decide whether the landlord would like to live in his own house or would like to continue to live in a house of his friend or relation and neither the court nor the tenant can dictate to the landlord that the landlord should not aspire for his own house. So, in view of the above discussion, I conclude that the finding of the Additional Rent Controller that the petitioner and his family members are in possession of reasonably suitable residential accommodation and they have a legal right to live in the said house at Andha Mughal is perverse as it is not based on any evidence and is liable to be set aside which I hereby do.
(11) There is no evidence that at any point of time the petitioner or even his father had asked for increase of rent. It is only a misplaced conjecture on the part of the respondents to allege that the petitioner is likely to let out the premises in question at a higher rent after getting the same vacated. I hold that it is not proved that the petitioner is actuated by any such ulterior motives. There are enough safeguards provided in the Act in case a landlord after getting possession of the premises on the ground of bonafide requirement fails to utilise the premises for his own residence. It is proved that the petitioner bonafide requires the premises in question for his own residence and also for residence of his family members dependent on him. No other point has been argued.
(12) I allow the revision and set aside the impugned order and pass an eviction order against the respondents on the ground covered by Clause (e) of Sub-section (1) of Section 14 of the Act and grant six months time to the respondents for vacating the premises. The petitioner shall have costs from the respondents throughout.