Delhi High Court
Sushila Devi And Ors. vs A.C. Jain And Ors. on 11 January, 1988
Equivalent citations: 34(1988)DLT186, 1988(14)DRJ245
JUDGMENT N.N. Goswamy, J.
(1) This revision petition under Section 25B(8) of the Delhi Rent Control Act, 1958, by the tenants is directed against the eviction order dated 10-9-1984 passed by the Additional Rent Controller, Delhi.
(2) The landlords had sought eviction on the ground of personal bonafide requirement. In paragraph 18(a) of the petition it was alleged :-
"1.The petitioner No. I is the owner and landlord and petitioner No. 2 has been held to be landlord of the premises in question. The premises in the occupation of the respondents are Bona fiddly required by the petitioner No. I for use as a residence for himself, his wife Smt. Rachna Jain and his daughter who are dependent on him. 2. He has no other accommodation (residential/non-residential) in Delhi or outside Delhi, much less reasonable suitable accommodation. 3. At present, petitioner No. I and his family are living in one room and a small store-cum-kitchen provided by Shri Areh Dass Jain who is also not having sufficient accommodation. 4. Besides, the predecessors of petitioners and respondents 9 to 11 are/have been old residents of Delhi and as such they have very wide social connections in Delhi and outside Delhi. Friends and relatives from outstation too often visit and stay with them. 5. The petitioner is B. Corn. and LL.B. and a practicing advocate and has been a regular assessed with Income Tax Department Delhi. 6. The petitioner No. I desires and intends to live in his own house in question peacefully with his wife and daughter."
In paragraph 19 of the petition it was alleged that A. Dass & Sons was constituted by the petitioners and respondents 9, 10 and 11. A partition of immoveable properties of A. Dass & Sons, Hindu Undivided Family has taken place by virtue of decree in partition suit No. 682 of 1976. Final decree in that case was passed by this Court on 15-12-1976. By virtue of the said decree the premises which are subject matter of the present eviction petition came to the exclusive share of petitioner No. 1. To avoid objections' the other members of A. Dass & Sons have also been imp leaded as parties in this petition.
(3) The petition was contested on various grounds. It was pleaded that the decree of partition, if any, was a collusive decree and had been obtained only in order to create an additional ground for eviction of the tenants. It was further pleaded that the accommodation in possession of A. Dass & Sons was more than sufficient inasmuch as they had six main rooms besides three other rooms. It was further pleaded that besides the property in question the family of the landlords had various other properties which were mentioned in the written statement. It was further pleaded that the landlords had filed two earlier petitions, one on the ground of substantial damage and the other on the ground of bona fide requirement and that the said two petitions were decided against the landlords. The partition was effected only in order to create a further ground for seeking eviction of the tenants and as such the same was malafide and not binding on the tenants.
(4) On consideration of the oral evidence as also the partition decree the Additional Rent Controller came to the conclusion that it was not open to the tenants to challenge the partition decree which had been passed by this Court. Consequently it was held that the accommodation in occupation of respondent No. 1 was not sufficient and in any case he was not residing there as a matter of right. In view of these findings the eviction order was passed.
(5) The petitioners challenged the eviction order by way of revision petition in this Court. The said revision petition was dismissed in liming by a learned Single Judge of this Court. Dissatisfied the petitioners filed a petition for Special Leave to Appeal in the Supreme Court. The Supreme Court while deciding the appeal observed, "the provision contained in Section 14(1)(e) is meant to subserve a public interest and to strike a just balance between the competing needs of the landlord and the tenant. It is axiomatic that when a landlord applies for eviction of a tenant under Section 14(1)(e) of the Act, there is a duty cast on the Court to consider the question on merits on the basis of the evidence adduced by the parties." The Supreme Court did not agree with the reasons recorded by this Court for dismissing the revision petition in liming and remanded the case back to this Court with the directions to decide the revision petition afresh in the light of the observations made above.
(6) As a consequence of the aforesaid order of their Lordships of the Supreme Court I have heard the learned counsel for the parties at length. The Supreme Court before deciding the appeal had appointed a Joint Registrar of the Court to visit the premises in dispute and to report as to what is the accommodation in the entire building and whether there are any rooms on the third floor of the building and if so, how many rooms and in whose occupation those rooms are. Consequently the Joint Registrar visited the building and filed his report. According to the report the accommodation in occupation of the family is much more than what has been said in the statements of AW1 and AW2. According to the report the family has not less than nine rooms in the building in its occupation. Besides these nine rooms it is an admitted fact that a further set of three rooms has been vacated by another tenant which has come in possession of the family. Thus, the family has about twelve rooms in its occupation as at present. The petitioners filed two miscellaneous applications after the hearing was concluded in this revision petition. The prayer in these applications was to take into account the further accommodation made available to the respondents as also to take into consideration the fact that the alleged partition decree had never been acted upon. These applications were filed as additional evidence which was not permissible in revision petition and as such has to be rejected. However, the learned counsel for the respondents frankly conceded that in case the partition decree is held to be collusive and malafide, the accommodation in possession of the family was sufficient to accommodate the members of the family. Thus, the only question which survives for consideration is as to whether this Court can go into the question of collusiveness or otherwise of the partition decree passed between the members of the Huf of the respondents.
(7) I had the occasion to consider this question in detail with reference to the case law on the subject in "Chaman Lal Pandhi & Sons, Huf and another v. Mis. Primo Departmental Stores and others", 1986 (2) R.CJ. 71. On the facts of that case I had held that it was not open to the tenants to challenge the factual position of a property particularly when all the members of the Huf had agreed on the question as to whether the property belonged to Huf or to its one member. Further on facts I had found that the property in fact was brought into existence by the funds of Huf and each member had contributed to the same and that the property was being assessed as Huf right from the beginning. I distinguished a judgment of their Lordships of the Supreme Court in the case of "Devi Dass v. Mohan Lal", . On consideration of the entire material on the record I am satisfied that the observations of their Lordships of the Supreme Court in the case of Devi Dass (supra) are fully applicable to the facts of the present case. In that case the plea of the tenant was that the sale was sham transaction. The Courts below took the view that he could not raise this objection and as such no finding was recorded on that point. The Supreme Court held that he was entitled to challenge the sale transaction as sham. The case was remanded for a finding on a point raised by the tenant. The tenant had alleged that the sale-deed is a sham transaction and that no right, title or interest had passed to the landlord, Mohan Lal, under that document. The facts of that. case were that one Jugal Kishore father of Mohan Lal, the landlord executed a sale-deed in the name of his son Mohan Lal acting as Mukhtiyar of Jagiri Lal and Vasdev. The tenants plea was that this was done in order to create a ground of ejectment against him because on earlier occasions several applications filed by Jugal Kishore as Mukhtiyar of Jagiri Lal and Vasdev for ejectment of the tenant had been dismissed against him. In the present casein an admitted fact that the original landlords, namely, A. Dass & Sons had filed a petition for eviction against the tenants on the ground of substantial damage to the property. The said petition was dismissed and the appeal met with the same fate. Thereafter another petition was filed for eviction on the ground of personal bonafide requirement. At a later stage the petition was withdrawn with liberty to file a fresh one on the same cause of action. The second petition was dismissed as withdrawn in 1975. A suit for partition of the property was filed in 1976 and a consent decree was obtained in December, 1976. Not only that the suit was not contested even the partition by metes and bounds was agreed to by the members of the family and on that basis the final decree was passed. A. Dass has appeared as AW2. He has deposed that he was living in the building Along with his three sons and they were all joint. The portion occupied by the sons originally are still being occupied by them. It is also an admitted that that the portion marked Abc in the site plan which has fallen to the share of respondent No. 1 is still occupied by respondent No. 2 as the goods of respondent No. 2 are lying in that portion. Respondent No. 1 continued to occupy the portion which he was occupying before the partition decree. There is nothing to show on the record that the family is no longer joint or that there has been any disruption of the joint family. The decree remains as a paper decree. Admittedly petitioner No. I who is a practicing lawyer is running his office in a Miani which does not belong to him according to the partition decree. He is not paying any rent to any body. His father is also occupying certain portions which did not fall to his share and for which he is also not paying any rent to any body. In cross-examination respondent No. 1 was asked to show if he was having any independent ration card. Though he stated that he was having an independent ration card but no such ration card was produced. In case he was taken by surprise, an independent ration card could be produced by A.W. 2 who appeared subsequently . From the fads it appears that the family continues to be a joint family and the partition decree has been obtained only in order to defeat the rights of the tenants and to create an additional ground for eviction, at these circumstances I am of the opinion that the partition decree has to be ignored for the purpose of this petition. It was not disputed that if the partition decree has to be ignored then the accommodation in possession of the family is more than sufficient for its requirement.
(8) For the reasons recorded above the petition is allowed and the eviction order passed by the Additional Rent Controller is set aside. The eviction petition filed by the respondents stands dismissed. However, in the circumstances of this case I leave the parties to bear their own costs.