Delhi District Court
Smt. Chandrani Devi vs Sh. Mohd. Ashraf on 23 January, 2012
IN THE COURT OF MRS. SUNITA GUPTA:
RENT CONTROL TRIBUNAL: DELHI
RCT appeal No. 82/11
Unique ID No. 0240IC0518932011
Smt. Chandrani Devi,
W/o late Sh. Ram Gopal,
r/o. 1043, Phatak Ram Kishan Dass,
Bazar Chitli Qabar,
Delhi 110006 ...........Appellant
Versus
1. Sh. Mohd. Ashraf,
s/o. Shri Nabitulla,
r/o. 1043, Phatak Ram Kishan Dass,
Bazar Chitli Qabar,
Delhi 110006.
2. Smt. Farida Begum,
s/o. Shri Nabitulla,
r/o. 1043, Phatak Ram Kishan Dass,
Bazar Chitli Qabar,
Delhi 110006 ..............Respondents.
Date of institution of appeal : 09.11.2011
Date when final arguments were heard: 23.01.2012
Date of pronouncement of judgment :23.01.2012.
JUDGEMENT :-
Feeling aggrieved by the order dated 01-11-2011 passed by Shri Pritam Singh, Addl. Rent Controller (Central) whereby objections filed by the appellant have been dismissed, appellate jurisdiction of this Tribunal under Section 38 of the Delhi Rent (RCT Appeal No.82/11) (Page 1 of 10) Control Act (for short "the DRC Act") has been invoked by the appellant/objector.
2. Briefly stated facts giving rise to the present appeal are that the respondent/decree holder filed an eviction petition under Section 14(1)(e) read with Section 25-B of the DRC Act against Shri Sita Ram. The tenant Sita Ram filed an application for leave to defend. However, vide order dated 8-10-2009, the application for leave to defend was dismissed and eviction order was passed against him. During pendency of the execution petition, objections under Section 25 read with Section 37 of DRC Act were filed by the appellant, claiming herself to be the tenant in respect of the suit premises, being the daughter in law of the original Tenant late Shri Ram Prasad. By impugned order dated 1-11-2011 objections were dismissed by learned ARC, by observing that original tenant in the suit premises was Shri Ram Prasad. Late Ram Gopal was predeceased son of late Shri Ram Prasad. Ram Prasad was survived by his legal heirs namely Smt.Chandrani Devi (objector); Sunita -grand daughter; Meena -grand daughter and Sita Ram- grand son. The objector took a plea that being legal heirs of late Ram Prasad, she is also a tenant in her own capacity in the suit premises and therefore she was a necessary party in the main eviction petition. Eviction petition was filed by the landlord/DH in connivance with the JD and the decree holder did not implead her in the eviction petition and therefore, eviction order was not binding on her. This stand (RCT Appeal No.82/11) (Page 2 of 10) was opposed by DH/landlord on the ground that after the death of late Ram Prasad, JD had attorned the landlord and had started paying rent, therefore, the JD alone was tenant in the suit premises and not other legal heirs. Learned ARC observed that objector had never made any attempt to pay rent to the landlord and when an eviction order has been passed in respect of the suit premises, she is claiming her tenancy rights. The objector became only a joint tenant in the suit premises after the death of late Shri Ram Prasad. That being so, it was not necessary for the landlord to implead all the legal heirs of deceased tenant as a party to the eviction petition, whether they are living in the suit premises or not. Therefore, by relying upon the judgement in Ashok Chintqman Juker and others Vs. Kishore Pandurang Mantri and another, AIR 2001 SC 2251, the objections were dismissed.
3. Feeling aggrieved by the impugned order, the present appeal has been preferred by the appellant/objector.
4. Notice of the appeal was given to the respondent and the trial court record was summoned.
5. I have heard Shri Rajiv Khanna, Counsel for the appellant and Shri A.Alam, Counsel for respondent /decree holder and have also perused the records carefully.
6. It was submitted by learned Counsel for the Appellant that under the Succession Act, objector succeeded to the estate of the deceased/Tenant since her husband predeceased the original Tenant Ram Prasad and therefore, she was the (RCT Appeal No.82/11) (Page 3 of 10) necessary party to be impleaded in the eviction petition. However, in connivance with the JD, the landlord filed the eviction petition against him only and so the eviction order is not binding on her. Otherwise also, she has become owner of the suit premises, by way of adverse possession.
7. Per contra, it was submitted by learned Counsel for the DH/respondent that after the death of original tenant his legal heirs became joint tenant. It was Sita Ram alone who was paying rent to the landlord after the death of original tenant and therefore, eviction petition was filed against him only. Moreover, the legal heirs of original tenant Sita Ram, inclusive of the appellant/objector inherited tenancy as joint tenancy. Even otherwise, it was not necessary for the decree holder to implead all the legal heirs in the eviction petition. Appellant never paid any rent to the decree holder/landlord. Even otherwise, appeal has become infructuous as possession of the suit premises has been taken by the landlord in execution of the eviction decree. As such, the objections are liable to be dismissed.
8. I have given my considerable thoughts to the respective contentions of the parties counsel and have perused the record carefully.
9. The appellant/objector had filed objections under Section 25 read with Section 37 of DRC Act. Section 25 of DRC Act reads as under :-
"25. Vacant possession to landlord:-
(RCT Appeal No.82/11) (Page 4 of 10) Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this act for the recovery of possession of such premises, the order shall, subject to the provisions of Section 18, be binding on all persons who may be in occupation of the premises and possession thereof shall be given to landlord by evicting all such persons therefrom:
Provided that nothing in this section shall apply to any person who has an independent title to such premises."
10. The above Section is divided into two parts. Substantive part of this Section describes the persons on whom order of recovery of possession of the premises is binding and who are, therefore, liable to be evicted in execution of the eviction order. These are "all persons who may be in occupation of the premises".
Second part of this Section 25 of DRC Act consists of a proviso and as per this proviso, the order of eviction is not binding on the person who claims to be tenant of the landlord in his own right and who does not claim through the person against whom order of eviction was passed. It was held by Hon'ble High Court in Krishna Devi Vs. Bhool Singh through L.Rs. 82(1999) DLT 82 that a person who claims to have independent right in the suit premises and has filed objections under Section 25 of the Act is not bound by the order of eviction and that such person has got a right to maintain objection application before the Executing Court to resist decree of eviction passed against tenant but the person (RCT Appeal No.82/11) (Page 5 of 10) who claims to have independent title in the demised premises must not claim through tenant but must assert that he has come to the possession at the behest of the landlord. Undisputedly, the appellant is not claiming any independent title in the suit premises but is claiming title being the legal heir of deceased tenant Ram Prasad, by submitting that the appellant/objector being one of the legal heirs of deceased Tenant is tenant in common and therefore, tenancy was inheritable and as such, eviction order was not binding upon her.
11. As regards the plea that on the death of original tenant, his legal heirs became tenant in common, the matter came up for consideration before the Hon'ble Supreme Court in H.C. Pandey Vs. G.C. Paul (1989) 3 SCC 77 and it was held that after death of original tenant, his heirs succeed to the tenancy as joint tenants and not tenants in common. This view was reiterated in Harish Tandon Vs. Addl. District Magistrate, Allahabad (1995) 1 SCC 537 and it was held that after the death of original tenant, the tenancy rights devolve on the heirs of the deceased tenants jointly. The incidence of the tenancy is the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor and the heirs succeed to the tenancy as joint tenants. " Referring to Gian Devi Anand Vs. Jeevan Kumar and others, AIR 1985 SC 796, it was held as under :-
(RCT Appeal No.82/11) (Page 6 of 10)
24. In the case of Gian Devi Anand Vs. Jeevan Kumar the Constitution Bench of this Court in connection with Delhi Rent Control Act, 1958 said:-
"The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. As the protection afforded by the Rent Act to a tenant after determination of the tenancy and to his heirs on the death of such tenant is a creation of the Act for the benefit of the tenants, it is open to the Legislature which provides for such protection to make appropriate provisions in the Act with regard to the nature and extent of benefit and protection to be enjoyed and the manner in which the same is to be enjoyed. If the Legislature makes any provision in the Act limiting or restricting the benefit and the nature of the protection to be enjoyed in a specified manner by any particular class of heirs of the deceased tenant on any condition laid down being fulfilled, the benefit of the protection has necessarily to be enjoyed on the fulfillment of the condition in the manner and to the extent stipulated in the Act."
25. The framers of the Act have clearly expressed their intention in Sections 12, 20 and 25 while protecting the tenant from eviction except on the grounds mentioned in Section 20, that after the death of the original tenant his heirs will be deemed to be holding the premises as joint tenants and for any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a plea that unless the grounds for eviction mentioned in sub-section (2) of Section 20 are established individually against each one of them, they cannot be evicted from the premises in question."
(RCT Appeal No.82/11) (Page 7 of 10) Our own High Court in Inder Pal Khanna Vs. Commander Bhupinder Singh Rekhi, 2008 VIII AD Delhi 328 observed that it is settled law that :-
"On the death of tenant, tenancy devolves upon legal heirs as the joint tenancy. L.Rs are not joint tenants and not tenants in common. Once tenancy is a joint tenancy, notice to one of joint tenant is sufficient to terminate tenancy and suit can not be held to be bad for non joinder of other joint tenants or all legal heirs of deceased Tenant. In that case plea taken that the petitioner was required to be served personally, was not accepted and it was held that where out of many, only one or two LR of deceased tenant are in occupation of premises, an eviction petition by landlord against those who are in occupation of the premises is a valid petition. It is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises. Service to one of the joint tenants has to be considered as service on other joint tenants because in joint tenancy, tenancy remains one. It is not separate tenancy and right of each of the joint tenants is in whole of the premises."
Hon'ble High Court relied upon Kanji Manji Vs.Trustees of the Port of Bombay, AIR 1963 SC 468 wherein Hon'ble Supreme Court observed that where the tenancy was a joint tenancy, notice to one of the joint tenants was sufficient and the suit against one of the joint tenants not impleading rest of the tenants was good and the suit can not be dismissed on this ground. The plea of the petitioner that petitioner was separately (RCT Appeal No.82/11) (Page 8 of 10) required to be served personally is therefore, not tenable. The petitioner was not a tenant in common. He had inherited joint tenancy alongwith his brother and other legal heirs. Reliance can also be placed on 1990(3) Delhi Lawyers 163 Mohd. Usman Vs. Surrayya Begum where it was observed as under :-
"In the light of the above observations of the Supreme Court, there can be no doubt that even if one of the legal heir is not a party to the proceedings for eviction filed by the landlord against the legal heirs of the original tenant, that heir who has been left out cannot later on come forward and agitate his or her right in the tenancy."
12. It is admitted by the appellant during the course of arguments that she never paid any rent to the decree holder. However, it was stated that since decree holder never demanded any rent from her, she did not pay the same. This plea is without any merits, inasmuch as it is the undisputed case of the respondent/landord that after the death of original tenant, Shri Sita Ram started paying rent to the landlord and as such there was no requirement for him to demand rent from other legal heirs of the deceased Tenant Ram Prasad. In fact, Sita Ram (against whom eviction petition was filed) is the son of the objector. Thus, it seems that original JD Sita Ram who had lost litigation upto Hon'ble High Court, set up the present objector/appellant in order to further stall the proceedings of the case. However, after dismissal of the objections of the appellant, in execution of the eviction decree the (RCT Appeal No.82/11) (Page 9 of 10) respondent/DH has already taken possession of the suit premises. In view of the fact that objector was one of the joint tenants in the suit premises, in view of the authoritative pronouncements as referred to above, there was no requirement for the landlord/DH to implead all the legal heirs of deceased Tenant as party and except for alleging that there was collusion between JD and DH, the objector/appellant has not been able to substantiate this plea. In fact it was pointed out by the learned counsel for the respondent/DH that JD was even standing outside this Tribunal when arguments were being heard. In view the fact that possession of the suit premises has already been taken over, this appeal has become infructous. Even otherwise, the appeal is devoid of any merits and same is accordingly dismissed.
Let a copy of this order be sent to the trial court while returning the record.
Appeal file be consigned to record room.
Announced in open Court
on 23.01.2012 (SUNITA GUPTA )
Rent Control Tribunal:
Delhi.
(RCT Appeal No.82/11) (Page 10 of 10)