Delhi District Court
U/S 14 (1)(E) Of Drc Act vs Shri Om Prakash @ Om Prakash Vaish on 29 November, 2012
IN THE COURT OF MS. SUGANDHA AGGARWAL, ADDL. RENT CONTROLLER (NORTHWEST) ROHINI : DELHI E.No.67/2008 [U/s 14 (1)(e) of DRC Act] Unique case Identification No. 02404C1024312008 1 Smt. Harjinder Kaur, Wife of Late Shri Avtar Singh 2 Sh. Trilok Singh, Son of Late Shri Avtar Singh 3 Sh. Harmeet Singh, Son of Late Shri Avtar Singh 4 Ms.Hardeep Kaur, Daughter of Late Shri Avtar Singh All R/o House No.F262, Mansarovar Garden, New Delhi. ... Petitioners Versus Shri Om Prakash @ Om Prakash Vaish S/o Shri Yad Ram, R/o H.No.3801, Gali No.4, Kanhaiya Nagar, Tri Nagar, Delhi - 110035. ... Respondent Date of Institution: 20.03.2008 Date of Arguments : 20.11.2012. Date of Decision: 29.11.2012. JUDGMENT:
1. This judgment shall dispose off the petition filed under Section 14(1)(e) of Delhi Rent Control Act, 1958. It is contended in the petition E. No. 67/2008 Page No. 1 of 16 that the respondent was inducted as tenant by Late Shri Sewa Singh in one room and one kitchen without roof rights in property bearing No. 3801, Gali No.4, Kanhaiya Nagar, Tri Nagar, Delhi (hereinafter to be referred as 'the suit premises') at a monthly rent of Rs.1,250/ excluding electricity and water charges. It is further contended that at present the rate of rent is Rs.1375/ per month.
2. Petitioners have further contended that after the death of Shri Sewa Singh, the entire property in which the suit premises is situated has devolved upon the legal heirs of Late Shri Sewa Singh and his wife Smt.Gian Kaur who was declared as Karta. But as she is suffering from arthritis, subsequently a family settlement was executed and the entire property in which the suit premises is situated has fallen to the share of the legal heirs of Late Shri Avtar Singh, predeceased son of Shri Sewa Singh. Petitioner No.1 is the wife of Late Shri Avtar Singh, petitioner No.2 and 3 are sons and petitioner No.4 is the daughter of Late Shri Avtar Singh. It is further contended that by virtue of said family settlement, the entire property in which the suit premises is situated has E. No. 67/2008 Page No. 2 of 16 fallen in the share of petitioners and therefore petitioners have became the owner of the suit premises. It is further contended that the entire property is a residential property. Petitioners No. 2 to 4 are of marriageable age and the portion already in occupation of the petitioners is not sufficient for residential purposes. It is further contended that the suit premises is required bonafide by the petitioners for the use of their own residence as petitioners No. 2 to 4 each require one room for themselves. It is further contended that petitioners have no other suitable alternative accommodation. Therefore, the present petition has been filed.
3. Written statement was filed by the respondent wherein he has contended that petitioners are not owner and landlord of the suit premises. It is stated that they have not come to the Court with clean hands and have concealed material facts. It is admitted that Late Sewa Singh was the owner of the suit premises. But it is averred that all the legal heirs of Shri Sewa Singh have not been made party to the alleged family settlement. Beside the petitioners, Smt. Gian Kaur and two sons, E. No. 67/2008 Page No. 3 of 16 there were two daughters also of Shri Sewa Singh. The said two daughters have not been made a party to family settlement, therefore, the family settlement relied upon by the petitioner is not correct and hence petitioners are not the owner of the suit premises. It is further contended that petitioners are residing at Property No. F262, Mansarovar Garden, New Delhi in which they have sufficient accommodation in their possession and therefore the suit premises are not required bonafide by the petitioners. All other averments of the petitioner are categorically denied by the respondent in his written statement.
4. Petitioner has filed replication to the written statement of the respondent thereby categorically denying all the averments made in the written statement and reiterating and reasserting the averments made in the petition. Petitioners have specifically stated that besides the petitioners, Smt. Gian Kaur and Surinder Singh i.e. another son of Late Sewa Singh, there is no other legal heir of Shri Sewa Singh to their knowledge and the family settlement is correct. They have further contended that after the family settlement, Property No. F262, E. No. 67/2008 Page No. 4 of 16 Mansarovar Garden, New Delhi had fallen to the share of Shri Surinder Singh who is son of Late Shri Sewa Singh and Smt.Gian Kaur who is wife of Late Shri Sewa Singh. Though the petitioners are residing there in one room but they are temporarily residing as they have no concern with the said property. They have been asked to vacate the said property as the accommodation available with Sh.Surinder Singh and Smt.Gian Kaur is also not sufficient.
5. After completion of pleadings, parties led their evidence. Smt.Harjinder Kaur i.e. Petitioner No.1 has examined herself as PW1 and tendered her affidavit in examinationinchief which is Ex.PW1/A wherein she has reiterated and reasserted the contents of the petition on oath. PW1 has identified the following documents :
a) Site plan is Ex.PW1/1.
b) Family Settlement dated 27.9.2007 is Ex.PW1/2.
c) Legal notice is Ex.PW1/3.
d) Postal Receipt, UPC and AD Cards are Ex.PW1/4 to Ex.PW1/6.
e) Legal notice dated 7.12.2007 is Ex.PW1/7.
f) Postal Receipt, UPC and AD Cards are Ex.PW1/8 to Ex.PW1/10.
g) Copy of Ration Card of Sh.Sewa Singh is Ex.PW1/11. E. No. 67/2008 Page No. 5 of 16
6. PW1 was crossexamined. During crossexamination, PW1 has deposed that her fatherinlaw Sh. Sewa Singh had only two sons and there were no daughters. One son Avtar Singh was her husband and another son is Surinder Singh. She has deposed that the family settlement had taken place between the family members and therefore the property in which the suit premises is situated had fallen to their share. Further PW1 maintained her stand during crossexamination. PW1 was discharged after crossexamination.
7. Affidavit of Smt. Gian Kaur was also filed as PW2 but the same cannot be considered as Smt. Gian Kaur did not appear for cross examination. Thereafter, Shri Surinder Singh who is son of Late Shri Sewa Singh was examined as PW2. PW2 Surinder Singh filed his affidavit in examinationinchief which is Ex.PW2/A wherein he has reiterated and reasserted the contents of the petition on oath. He has deposed that after the death of his father, the legal heirs who were left behind were himself, his mother Smt.Gian Gaur and LRs of his pre deceased brother Shri Avtar Singh i.e. the petitioners in the present case. E. No. 67/2008 Page No. 6 of 16 He has further deposed that his father had two residential properties, one is the property in which the suit premises is situated i.e.property No. 3801, Gali No.4, Kanhaiya Nagar, Tri Nagar, Delhi and the another one is property No. F262, Mansarovar Garden, New Delhi. He has further deposed that as per family settlement, the property in which the suit premises is situated had fallen in the share of the petitioners being legal heirs of his predeceased brother Shri Avtar Singh and the property at Mansarovar Garden had fallen in the share of her mother Smt. Gian Kaur and himself. He has further contended that the respondent has stopped paying the rent and a legal notice was served upon the respondent. He has identified the family settlement as Ex.PW2/1 bearing his signatures at point B. PW2 has further deposed that he has executed a Relinquishment Deed with respect to the property in which the suit premises is situated in favour of the petitioners herein and the same is Ex.PW2/2 bearing his signatures at point B. PW2 has further contended that the suit premises are bonafidely required by the petitioners as at present petitioners does not have sufficient accommodation to meet their E. No. 67/2008 Page No. 7 of 16 residential needs. PW2 was crossexamined and discharged.
Thereafter, petitioners' evidence was closed.
8. Respondent examined himself as DW1 and filed his affidavit Ex.DW1/A in examinationinchief wherein he has reiterated and reasserted the contents of his written statement on oath. DW1 has identified the following documents :
a) Legal Notice dated 25.7.2007 as Ex.RW1/1.
b) Postal Receipt and UPC are Ex.RW1/2 and Ex.RW1/3.
c) Site plan is Ex.RW1/4.
9. During crossexamination, RW1 has admitted that on the first floor, there is only one room and there is no other room on the first floor. He has stated that there was no written agreement of tenancy between him and the original landlord. Further DW1 has maintained his stand during crossexamination. He was discharged after cross examination.
10. Affidavit of Ms. Prakash Kaur has been filed as RW2 but the same cannot be considered as she has not com to the Court for cross E. No. 67/2008 Page No. 8 of 16 examination.
Thereafter, respondent's evidence was closed.
11. I have heard the arguments raised by both the parties.
12. Counsel for petitioner has argued that petitioners are the legal heirs of Late Shri Sewa Singh. As per family settlement Ex.PW1/2 and the Relinquishment Deed executed by Smt.Gian Kaur and Shri Surinder Singh, the suit premises had fallen to the share of petitioners and therefore the petitioners are the owners of the suit premises. The suit premises is bonafidely required by the petitioner. No substantial defence has been raised by the respondent and only vague pleas have been taken by the respondent in the written statement, therefore, petition shall be allowed.
13. Per contra, written arguments have been filed by the respondent thereby reiterating and reasserting the averments made in the written statement.
14. I have considered the rival contentions of both the parties and have perused the record.
E. No. 67/2008 Page No. 9 of 16
15. In the written statement, respondent has challenged the relief claimed by the petitioner on the following grounds :
a) The petitioners are not the owners of the suit premises.
b) Suitable alternate accommodation is available with the petitioners.
I OWNERSHIP
16. It is contended by the respondent that the suit premises belongs to Late Shri Sewa Singh. Respondent has admitted that the suit premises was let out to him by Shri Sewa Singh. He has stated that the family settlement Ex.PW1/2 is not valid as besides Shri Surinder Singh and Late Shri Avtar Singh there were two daughters also who have not been made party to the said family settlement. As per the version of the respondent, Late Shri Sewa Singh had married twice. Two sons were born out of the wedlock with Smt. Gian Kaur and two daughters were born with the second wife. The said contention of the respondent has been specifically denied by the petitioners and all other petitioners' witnesses. Petitioner No.1 who is the daughterinlaw of Shri Sewa Singh and wife of Shri Avtar Singh has been examined as PW1. A E. No. 67/2008 Page No. 10 of 16 specific suggestion was put to her in this respect and she has denied the same. Same is the case with PW2 Surinder Singh who is son of Shri Sewa Singh. Now onus was on the respondent to prove his averment. However, respondent has not adduced any evidence in this respect. He has examined himself as RW1 and has reiterated the said fact on oath in his affidavit. But there is no other evidence on record to prove the said averment. It is not stated as to why no notice was sent by the respondent to said two daughters and why no efforts were made to call them and made them as party or to examine them as witness by the respondent. Furthermore, even if for the sake of arguments, if it is taken that the said family settlement was not valid then also the fact that the suit premises belongs to Shri Sewa Singh and petitioners are the legal heirs of Late Shri Sewa Singh is not denied by the respondent. Being legal heirs of Late Shri Sewa Singh, petitioners have become coowners in the suit premises and being coowners petitioners are well within their rights to claim eviction of the suit premises.
E. No. 67/2008 Page No. 11 of 16
In the case of Vijayan Vs. Sakeena 2012 (1) RCR (Rent) 177 (Kerala) DB, it has been observed as under : "Two coowners jointly owned a property to tenant. One of the coowners selling his undivided half share in property to tenant. There will be no merger or determination of lease under Section 111 (d) of T.P. Act because the tenant had not obtained assignment of entire rights of lessor. The coowner entitled to evict tenant (though to was also a coowner) on grounds available under Rent Act."
17. Therefore in view of above discussion, I am of the considered opinion that the petitioners are the owners and landlord of the suit premises and are entitled to seek eviction of the respondent from the suit premises.
II ALTERNATE ACCOMMODATION
18. Respondent has contended that petitioners have concealed material facts from the Court. It is contended that the petitioners are already residing in property No. F262, Mansarovar Garden, New Delhi and therefore the suit premises are not bonafidely required by the petitioners.
19. With respect to property No. F262, Mansarovar Garden, New E. No. 67/2008 Page No. 12 of 16 Delhi, petitioners have admitted that they are residing in the said property but it is specifically stated by the petitioners that the said property has fallen to the share of Shri Surinder Singh and Smt. Gian Kaur after family settlement and they are staying there temporarily only because they does not have sufficient accommodation to stay. Further even at the said property, petitioners are staying in one room. Petitioners no. 2 to 4 are of marriageable age and require one room each. Hence even the extent of accommodation at property No. F262, Mansarovar Garden, New Delhi is not sufficient to cater to the residential needs of the petitioners. Further in view of the fact that property No. F262, Mansarovar Garden, New Delhi belongs to Shri Surinder Singh and Smt. Gian Kaur, petitioners have been told to vacate the same. Hence it cannot be said that alternate accommodation is available with the petitioners. The said fact has been duly proved by the testimony of PW2 Surinder Singh who has deposed in the Court on oath and has maintained his stand during crossexamination.
20. Respondent has challenged the family settlement and the E. No. 67/2008 Page No. 13 of 16 Relinquishment Deed executed in favour of the petitioners. However, as discussed above, it cannot be said that the said family settlement is not valid and neither the Relinquishment Deed can be held to be invalid. PW2 has identified his signatures on both these documents.
21. With respect to one room available on the first floor of the property, even if it is taken that the said room is available, then also it is only one room which is available to the petitioners. Petitioners are four in number and require one room each. Petitioners No. 2 to 4 being of marriageable age cannot be expected to share one room and it is a settled law that landlord is the best judge of his need and can decide about his/her standard of living and tenant cannot dictate terms.
In the case of Sudesh Kumar Soni & Anr. Vs. Prabhas Khanna & Anr. 153 (2008) DLT 652, it is held as under : " If landlord wishes to live with comfort in a house of his own, law does not common or compel him to squeeze himself tightly into lesser premises protecting tenants occupancy.
Landlord is the best judge of his residential requirement."
22. Hence the said plea of the respondent is also not tenable.
23. In view of above discussion, I am of the considered opinion E. No. 67/2008 Page No. 14 of 16 that petitioners have duly proved their case by preponderance of probabilities.
24. Accordingly, the petition filed by the petitioners under Section 14(1)(e) of Delhi Rent Control Act is allowed. An order of eviction is hereby passed in favour of the petitioners and against the respondent in respect of the suit premises i.e. one room and one kitchen without roof rights in property bearing No. 3801, Gali No.4, Kanhaiya Nagar, Tri Nagar, Delhi as shown in red colour in the site plan Ex.PW1/1. However, the petitioners shall not be entitled to obtain the possession thereof before the expiry of a period of six months from the date of this judgment. File be consigned to Record Room after completion of necessary formalities.
( SUGANDHA AGGARWAL) Addl. Rent Controller, NW Rohini, Delhi Announced in open Court on this 29th day of October, 2012 E. No. 67/2008 Page No. 15 of 16 E. No.67/2008 29.11.2012 Present: Mr. Surinder Singh, brotherinlaw of petitioner No.1.
None for respondent.
Vide separate judgment passed and announced in the open court today, the petition filed by the petitioner under Section 14(1)(e) of Delhi Rent Control Act has been allowed. An order of eviction is hereby passed in favour of the petitioner and against the respondent in respect of the suit premises i.e. one room and one kitchen without roof rights in property bearing No. 3801, Gali No.4, Kanhaiya Nagar, Tri Nagar, Delhi as shown in red colour in the site plan Ex.PW1/1. However, the petitioner shall not be entitled to obtain the possession thereof before the expiry of a period of six months from the date of this order. File be consigned to Record Room after completion of necessary formalities.
(Sugandha Aggarwal) A.R. C./NW/Rohini/29.11.2012 E. No. 67/2008 Page No. 16 of 16