Delhi District Court
Smt. Shashi Mehra vs Sh.Ravinder Dayal Mathur on 12 September, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
E. No.36/11/09.
Smt. Shashi Mehra
W/o.Sh.Bipin Behari Mehra
D/o.Late Sh.Ishwar Dayal
R/o.Flat Bearing Municipal No.7A-II (7A/2)
Bela Road, Civil Lines,
Delhi-110054. .............Petitioner/Landlord
Vs.
Sh.Ravinder Dayal Mathur
S/o.Late Sh.Bishember Dayal Mathur,
R/o.Flat Bearing Municipal No.7A-I (7A/1)
Bela Road, Civil Lines,
Delhi-110054. ...............Respondent/Tenant
Date of institution : 13.09.2004.
Date of reservation : 12.08.2011.
Date of pronouncement : 12.09.2011.
JUDGMENT
01. This is an eviction petition u/s 14 (1)(e) r/w section 25B of DRC Act 1958 in respect of residential flat/premises bearing municipal number 7A-I(7A-1), which was originally a part of property no.7, Bela Road, Civil Lines, Delhi-110054.
02. In brief, the facts of present case as made out in the petition are that since the year 1993, the respondent has been the tenant under the petitioner. The monthly rent of the tenanted premises is claimed Rs.1800/- per month excluding electricity and water charges. It is stated that at E. No.36/11/09 page 1 of page 26 present, respondent alongwith his wife and two adult sons are residing in the residential flat/premises in question. Earlier the father and other family members of the family of the respondent were also residing therein. However, the respondent alone has attorned as tenant in favour of the petitioner and has been paying rent to the petitioner as owner/landlady since the year 1993 against the rent receipts. The respondent has also been signing the counter foils of the rent receipts. Regarding ownership of the petitioner, it is submitted that the flat in the tenancy of the respondent was originally a part of property no.7, Bela Road, Civil Lines, Delhi, was owned by late Sh.Ishwar Dayal, the father of the petitioner, having came to her share by virtue of partition and award which has also been made a rule of the court vide judgment/decree dated 27.10.1972 passed by Hon'ble High court of Delhi in suit no.302/72 titled as Satishwar Dayal Vs. Ishwar Dayal and Ors. Sh.Ishwar Dayal, father of the petitioner, executed a will dated 18.09.1974 duly registered with Sub Registrar of Delhi whereby, he created a life estate in respect of his property, falling to his share i.e. four residential flats including the residential flat in question in favour of his wife Smt.Bhawani Devi @ Kashmiran Rani and on her death, he gave aforesaid property absolutely to her four daughters including the petitioner i.e.one flat to each of his daughters. Sh.Ishwar Dayal, father of the petitioner, died in the year 1983 and Smt.Bhawani Devi @ Kashmiran Rani, the mother of the petitioner died in the year 1986. On the death of the parents of the petitioner, the petitioner became absolute owner/landlady of the residential flat/premises now in the tenancy of the respondent, which has also been mutated in the records of MCD. It is stated that the premises have always been used as residence as earlier the father as well as the mother of the respondent who also became tenant under the petitioner from time to time, were also residing in the premises in question alongwith the E. No.36/11/09 page 2 of page 26 respondent and his family. The father of the respondent died in August 1987 and the mother of the respondent died in the year 1992, while they were residing in the flat in question.
03. It is case of the petitioner that residential flat/premises in question let out to the respondent for residential purposes is required bonafide by the petitioner who is owner/landlady thereof for occupation as a residence for herself and members of her family dependent upon her and petitioner has no other reasonable, suitable, residential accommodation in her possession. It is submitted that the petitioner has been residing alongwith her husband at residential flat/premises bearing municipal number 7A-II(7A/2) Bela Road, Civil Lines, since the year 1998. The said flat is adjacent to the tenanted premises and consists of almost same accommodation as that of tenanted premises. The younger son of the petitioner namely Sh.Atul Mehra, his wife Smt. Tripta Mehra who got married in the year 1997 also came to reside in the said flat alongwith the petitioner and her husband and now the family of the petitioner who has been residing in the residential flat stated herein above consists of herself, her husband, her son Sh.Atul Mehra, his wife Smt. Tripta Mehra and their two children namely Tanmay Mehra and Arpita Mehra. The said flat consists of only three rooms. The petitioner and her husband are using one room on the ground floor as their bed room and the said Sh.Atul Mehra and his wife has been using other room on the first floor as their bed room. The only room left on the ground floor is being used by the entire family for multi purpose like for watching TV, eating meals, study, doing Pooja, and meditation, staying of guests etc. as there is no independent drawing room, dining room, study room, guest room, sitting room, Pooja Room etc.available to them in the said flat. The grandchildren of the petitioner also do not have independent bed room for themselves. The petitioner is a E. No.36/11/09 page 3 of page 26 religious minded person and herself is M.A.Hindi Language. The husband of the petitioner is professor at Delhi College and has to do study and interact with students and colleagues in connection with his job. The petitioner has a married daughter who is also a lecturer and almost frequently visit the petitioner and many a time stay with them. There is hardly any accommodation to accommodate her and the petitioner and her husband find great difficulty in accommodating her in the said flat.
04. It is stated that prior to shifting to the flat bearing no.7A/2, Bela Road, Civil Lines, Delhi the petitioner was residing at 69, UB, Jawahar Nagar, Delhi-10007 alongwith her husband and her family as well as father in law and mother-in-law. The said property is the self acquired property of the father in law of the petitioner. The accommodation which was available to the petitioner and her husband was on the third floor of the said property. With the passage of time, certain differences cropped up in between the petitioner on one side and her in laws on the other side, on account of which, lot of misunderstanding and bickerings cropped up between them and to avoid all such, the elder son of the petitioner namely Sh.Vipin Mehra, advised them to shift to his flat i.e.flat no.7A/2, Bela Road, Civil Lines, Delhi. It is stated that the petitioner and her husband were earlier living at 69, UB Jawahar Nagar, i.e.owned by the father in law of the petitioner and at present, in the flat, which is owned by her son. The petitioner thus, has always been living on a leave and license basis and by sufference firstly, in her father in law's house and in her son's flat and never lived in her own rights in her own flat. It is stated that Sh.Vipul Mehra son of the petitoner has also asked the petitioner to vacate his flat as he requires the same for his own use and purposes. The petitioner and her husband are now Senior citizen and the petitioner now intend to reside in her own flat, now in the tenancy of the respondent so that the petitioner E. No.36/11/09 page 4 of page 26 and her husband can reside and pursue their activities of life peacefully without any hinderence and interference from any quarter and the petitioner therefore, urgently and bonafidely require the said flat owned by her for residence. Hence the present petition.
05. Respondent filed an application for leave to defend and vide order dated 02.02.2005, ld.predecessor of this court hold that respondent has been able to raise triable issues in respect of bonafide requirement and availability of the any other reasonable, suitable accommodation only and accordingly, on these two grounds, leave to defend of the respondent was allowed. Aggrieved from the order of ld.predecessor for granting conditional leave, the respondent filed an application u/s 114 C.P.C. seeking review of order dated 02.02.2005 and the application as filed by respondent, was allowed vide order dated 24.08.2007 and the order dated 02.02.2005 was reviewed u/s 114 C.P.C. and leave to defend was granted to the tenant/respondent without any specific conditions.
06. Respondent after unconditional leave to defend, filed amended written statement while taking preliminary objections that the entire case of the petitioner is two fold (i) that disputed premises was originally a part of property no.7, Bela Road, Civil Lines, New Delhi and was owned by Late Sh.Ishwar Dayal, father of the petitioner, having come to his share by virtue of an award dated 23.02.1972 by Sh.Jagdishwar Dayal and award which has been made a rule of the court vide judgment and decreed dated 27.10.1972 passed by Hon'ble High court of Delhi in suit no.302/1972 titled as Sh.Satishwar Dayal Vs. Ishwar Dayal, (ii) Sh.Ishwar Dayal, executed a will dated 18.09.1974 duly registered with the Sub Registrar thereby, he created a life estate in respect of his property fallen to his share including the disputed flat in favour of his wife and on her death, gave aforesaid property including four flats, absolutely to his E. No.36/11/09 page 5 of page 26 four daughters including the flat in question to the petitioner; the document produced by the petitioner themselves, show that Sh.Ishwar Dayal had no right or title of any kind in 1955-66 in the disputed premises, what to talk of letting of the same Sh.Keshav Dayal around 1956. Sh.Keshav Dayal, Advocate and Bishambar Dayal were all duped by the mispresentation and fraud perpetuated by Sh.Ishwar Dayal that he was owner of the disputed premises. Infact, till date, no sale deed, mutation record/any authentic site plan approved by the municipal corporation has been placed on record to show that Ishwar Dayal was ever the owner of disputed premises; the younger son of respondent Sh.Nitin Dayal, Advocate, had met with an serious car accident and therefore, no proper defence pleas could be taken or argued in the leave to defend application which was decided vide order dated 02.02.2005; the court file of suit no.302/72 Satishwar Dayal Vs. Ishwar Dayal and ors.has been inspected by the respondent for the first time on and after 16.02.2005 and it has been revealed that the petitioner has suppressed material facts, tampered with the record and has played a fraud with the court and the certified copy of the award dated 27.02.1972 filed by the petitioner is unstamped, unsigned, unexecuted document and is non-est in law and is not registered in accordance with the provision of registration Act and is null and void and does not confer any right, title and other ownership right in favour of Sh.Ishwar Dayal; according to Section 2(a) of the Arbitration Act, no award can be made unless there is an agreement in writing and no such agreement in writing has been produced in suit no.302/72; it is well settled law as per Apex Court that if the High Court has erroneously made the award a rule of the court which is not registered, in accordance with section 17 and 49 of the Registration Act, such award is an nullity in the eyes of law; a will is binding qua the parties and will has not been probated and hence, unenforceable against the E. No.36/11/09 page 6 of page 26 respondent; petitioner was neither the landlord nor the owner of the disputed premises on the date of filing of the present petition; present petition is premature and deserves to be dismissed; no legal notice has been served on the respondents prior to filing of the present petition; petitioner is guilty of suppression of material facts, the documents on which the petitioner is allegedly relying are unstamped, non-est in law; petition is bad for nonjoinder of MCD as a necessary proper party; letter dated 03.09.1987 is not mutation letter; there is no privity of contact between the petitioner and respondent as landlord and tenant, the respondent has never attorned to the petitioner as his landlord at any point of time; the present petition is highly belated and barred by time. On merits, the contents of the petition have been denied, while submitting that the premises in question have always been used as residential-cum- commercial purposes with the full knowledge and permission of Sh.Ishwar Dayal. It is denied that the respondent has attorned as a tenant to pay rent to the petitioner or that respondent is paying @Rs.1800/- or any other amount as rent to the petitioner. The premises was always being used for commercial purposes, the respondent has always been using and prior to him, his father and brother were using one room as office with the consent and knowledge of late Sh.Ishwar Dayal. It is denied by the respondent that there are three rooms accommodation, is available with the petitioner while submitting that the accommodation available to the petitioner comprising of ten rooms, one drawing room, one store, toilet, bathroom, kitchen and front open lawn. It is submitted that Shamrock/shevron nursery school, the swimming pool at the front is being manged by her son Sh.Atul Mehra, who is running the school from the premises 7A/3 and 7A/4, Bela Raod. The site plan filed by petitioner is defective in as much as no dimensions are made about the boundaries of the property and construction made.
E. No.36/11/09 page 7 of page 26 Sh.Atul Mehra, son of the petitioner is not dependent upon petitioner, as he is admittedly managing Shamrock/Shevron School, therefore, the need of Atul Mehra, his wife and two minor children cannot be clubbed with the petitioner's need of bona fide requirement. The husband of the petitioner is a joint owner of 69, UB, Jawahar Nagar, which is a 28 roomed palatial building and the elder son of the petitioner is running Genius Academy of study from the said place on ground floor and is also residing in the said premises on the upper floor. It is submitted that the petitioner has much more suitable residential accommodation at her disposal that what she require bona fide. She has more than 10 rooms at her disposal in premises number 7A/2, 7A/3 and 7A/4, which are interconnected adjoining houses, therefore, it is prayed by the respondent that the petition be dismissed with heavy cost.
07. Petitioner filed replication to the amended written statement, thereby, denying the contents as mentioned in the amended written statement while reaffirming the averments as mentioned in the petition. It is further submitted by the petitioner that the respondent has ben paying rent to the petitioner in acknowledgment of her being owner of the property, which is so mentioned in the rent receipts, issued not only to the respondent, but to his predecessors including Sh.Keshav Dayal and Sh.Bishambar Dayal etc.i.e.brother and parents, who were tenants prior to him. It is submitted that petitioner has nothing to do with the running of school from 7A/3 and 7A/4, Bela Road or she has 10 rooms in her possession. Petitioner has also denied that husband of the petitioner is joint owner of the property bearing no.69, UB, Jawahar Nagar or it is a 28 roomed palatial building.
08. In support of its case, petitioner examined herself as PW-1 and filed her examination in chief as Ex.P-1 and relied upon documents E. No.36/11/09 page 8 of page 26 Ex.PW-1/1 to Ex.PW-1/51, PW-2 is Sh.Dinesh Dayal, Advocate, who is the attesting witness of will Ex.PW-1/4. On the other hand, respondent examined himself as RW-1 and filed his examination in chief as Ex.R-1 and relied upon documents Ex.RW-1/1 to RW1/33.
09. I have heard ld. Counsel for parties and perused the record as well as written arguments as filed on behalf of both the parties. I have also perused the arguments of the respondent in rebuttal to be written notes of arguments of the petitioner and comparative table of eviction petition/replication/evidence of petitioner as filed by respondent.
10. Ld.counsel for petitioner has relied upon the judgments reported as, 90 (2001) DLT 137, AIR 1995 SC 491, 1991 RLR 322, 1987 RLR 526, 134 (2006) DLT 298, 1995 RLR 162, 153 (2008) DLT 423, 161 (2009) DLT 232, 174 (2010) DLT 64, 173 (2010) DLT 189, 18 (1980) DLT 434, 76 (1998) DLT 165, 1996 (6) SCC 353, 38 (1989) DLT 233, 62 (1996) DLT 177, 110 (2004) DLT 193, 153 (2008) DLT 247, 113 (2004) DLT 527, 169 (2010) DLT 769, 113 (2004) DLT 673, 1998 RLR 627. 29 (1980) DLT (SN) 6, 61 (1996) DLT 708, 1997 RLR 283. On the other hand ld. Counsel for respondent has drawn my attention in respect of judgments reported as, AIR 1926 Nagpur 376, AIR 1987 SC 1242, AIR 1982 SC 1456, AIR 2000 SC 1165, AIR 1983 SC 684, AIR RLR (SC) 1, 2002 (2) RCR 640 (Bombay) AIR 1994 SC 853, AIR 2000 SC 1165, 2002 (1) RCR 433 (Punjab & Haryana), 2002 (1) RCR 701 DELHI, AIR 1926 Calcutta 720, 1992(2) RCR 398 (Bombay), AIR 1961 Bombay 169, AIR 1995 SC 2185, AIR 1954 SC 526, AIR 1991 MP 15, AIR 1995 Orissa 271, 1980(2) RLR 36(Delhi), 1978(2) RLR 323, AIR 1989 All. 133, AIR 1962 SC 1471, (1994) SCC 1. 2002(2) RCR 201, AIR 1926 Nagpur 376, AIR 1926 Nagpur Allahabad 714, AIR 1987 SC 1242, AIR 1982, SC 1456.
E. No.36/11/09 page 9 of page 26
11. Let me examine as to what extent parties have been able to prove their contentions in respect of their case :-
Landlord/Tenant relationship
12. PW-1 Smt.Shashi Mehra, deposed in her examination in chief Ex.P-1 that since the year 1993, the respondent alone became tenant under her and respondent also attorned in her favour and accepted petitioner alone as owner/landlady of the premises in his tenancy. PW-1 deposed that the respondent started paying rent to the petitioner alone since 1993 against the rent receipts issued to him and respondent has also been signing counterfoil of the rent receipts. PW-1 deposed that the respondent has paid rent without any demur since the year 1993 till the end of July 2002 and the original counterfoils have been proved as Ex.PW-1/19 to PW-1/26. This testimony of PW-1 remains unrebutted and even a suggestion was not put to the petitioner in respect of payment of rent or counterfoils Ex.PW-1/19 to Ex.PW-1/26 or in respect of signatures of respondent thereon.
13. Respondent in his examination in chief Ex.R-1 deposed that previously Sh.Keshav Dayal Advocate took the suit premises bearing no. 7/1, Bela Road, Civil Lines, Delhi on rent from Sh.Ishwar Dayal about in the year 1956 for residential as well as office purposes. RW-1 further deposed that father of the respondent died in August 1987 and thereafter his widow and respondent became tenant in the suit premises. The mother of the respondent expired in the year 1992 and after that the respondent became tenant in the suit premises and since then, the respondent has been using the suit premises for residential as well as office purposes. In his cross examination, respondent confirmed that after the death of Smt.Kashmiran Devi, his father started paying rent to Shashi Mehra, the petitioner against rent receipts. After the death of his father and mother, E. No.36/11/09 page 10 of page 26 he started paying rent to the petitioner against the receipt. Respondent further confirmed that he paid rent to the petitioner against receipt from 1992 to 1998 and also signed the counterfoils of rent receipts. In view of specific admission of the respondent that his father started paying rent to petitioner against rent receipt and after the death of his parents, the respondent started paying rent to the petitioner against receipt and also signed the counterfoils of the rent receipts, it has been duly proved that the relationship between the parties is of landlord and tenant as defined u/s 2
(e) and (l) of DRC Act 1958.
Ownership of the Petitioner
14. It is the case of the petitioner as deposed in affidavit Ex.P-1 that she is the sole owner/landlady of the tenanted premises. The tenanted premises was originally part of property no.,7, Bela Road, Civil Lines, Delhi, owned by late Sh.Ishwar Dayal, father of the petitioner, having come to his share by virtue of partition and Award which have been made the rule of the court vide judgment and decree dated 27.10.1972, passed by Hon'ble High Court of Delhi in suit no.302/72 entitled "Satishwar Dayal Vs. Ishwar Dayal etc." Certified copy of same is proved as Ex.PW-1/3. The certified copy of the Award dated 23.02.1972 alongwith site plan is proved as Ex.PW-1/2 (colly). PW-1 further deposed that Sh.Ishwar Dayal father of the petitioner, executed a will dated 18.02.1974 duly registered with Sub Registrar of Delhi and identified the signatures of his father as executant and the signature of attesting witnesses Sh.Dinesh Dayal and Sh.R.Dayal and proved the same as Ex.PW-1/4. PW-1 further deposed that on the death of her parents, she became absolute owner/landlady of the tenanted premises and the tenanted premises has been mutated in favour of the petitioner in the records of MCD and proved the copy of mutation letter as Ex.PW-1/5 and copies of house tax receipts as E. No.36/11/09 page 11 of page 26 Ex.PW-1/6 to 9. PW-2 is Sh.Dinesh Dayal, advocate, who is the attesting witness of the will Ex.PW-1/4 and identified his signatures on the will at point A. PW-2 deposed that the will was executed by Sh.Ishwar Dayal in his presence and in the presence of the other attesting witness Sh.Rajeshwar Dayal. PW-2 further deposed that the brothers of the petitioners and their father had a dispute about the ownership of 7, Bela Road, Civil Lines, and his father was appointed as an arbitrator and he gave an Award in respect to the dispute. PW-2 deposed that he can identify the signatures of his father Sh.Jagdishwar Dayal as he had seen him writing and signing during his lifetime. The copy of application is proved as PW-2/1 and award Ex.PW-2/2 which bears the signatures of father of PW-2 on all the pages.
15. It is the plea of the respondent as deposed in his examination in chief Ex.R-1 that although, the father of petitioner had stated that he was the owner of the suit premises but, he never showed any documents of ownership to the parents of the respondent or to the respondent. RW-1 deposed that the alleged award dated 23.02.1972 was unsigned, unstamped and perverse on the face of the record, against public policy, illegal and invalid and its was just made for creating an evidence of alleged ownership. RW-1 deposed that since Sh.Ishwar Dayal was not owner of the suit premises, therefore, the alleged will dated 18.09.1974 also did not confer any right of ownership in favour of the petitioner and the will is also illegal and invalid. It is further plea of the respondent as deposed that he had found after inspection of the High Court record on 16.02.2005 of suit number 302/72 that the award dated 23.02.1972 was not on stamp paper and was also not signed by any party or the arbitrator. Similarly, it is alleged that memorandum of partition was also not signed by any party, but are only in the nature of unsigned draft and later on, the petitioner E. No.36/11/09 page 12 of page 26 substituted the unsigned copy of the award dated 23.02.1972 and memorandum of partition in suit no.302/72 by a stamp and signed copy of the award dated 23.02.1972 and the memorandum of partition and thus, the petitioner is guilty of purgery and is not the owner of the suit premises, therefore, she cannot maintain the present petition u/s 14(1)(e) r/w section 25B of DRC Act for eviction against the respondent.
16. Ld. Counsel for petitioner argued that the respondent has no right to challenge partition, will, Award, etc. as he is not the legal heir and the ownership under the DRC Act is not to be proved as absolute ownership but something more than a tenant as the proceedings under the DRC Act are not title proceedings. On the other hand, ld.counsel for respondent argued that there can be no estoppal against fraud and the respondent can show that a judgment or order as relied upon was not by a competent court or was result of fraud or collusion and drawn my attention in respect of authorities as also mentioned in the citation/written notes as well comparative table of eviction petition as filed by respondent. It is settled law that in case u/s 14 (1)(e) of DRC Act, landlord has not to prove ownership in absolute terms.
17. In an authority reported as Smt.Shanti Sharma and Ors.V.Smt.Ved Prabha and Ors., 33 (1987) DLT 80 (SC)=AIR 1987 SC 2028, it was held by Hon'ble Supreme Court and I quote:-
"The word 'owner' has not been defined in this Act and the word 'owner' has also not been defined in the Transfer of Property Act. The contention of the learned Counsel for the appellant appears to be that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the Counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the E. No.36/11/09 page 13 of page 26 persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State and this view of the matter it could not be thought of that the Legislature when it used the term 'owner' in the provision of Section 14(1)
(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. This Act has been enacted for protection of the tenants.
But at the same time it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove his bona fide requirement and that he is the owner thereof. In this context, what appears to be the meaning of the term 'owner' is vis-a-vis the tenant i.e.the owner should be something more than the tenant."
18. In another authority reported as 1995 RAJDHANI LAW REPORTER 162 titled as Jiwan Lal Vs. gurdial Kaur & Ors., it was held by Hon'ble High court and I quote:-
"3.There is a tendency on the part of tenants to deny ownership in cases u/s 14(i)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases u/s.14(1)(e) are not title cases E. No.36/11/09 page 14 of page 26 involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the ownership of the premises."
19. In another authority reported as 153 (2008) DLT 423 titled as A.K.Nayar Vs. Mahesh Prasad, it was held by Hon'ble High court and I quote:-
"It is settled law that under Delhi Rent Control Act, a landlord seeking eviction of premises for his bona fide requirement is not required to show his absolute ownership over the property. The word 'owner' has not been defined in the Act and concept of ownership for the purpose of Delhi Rent Control Act has to be understood in proper context. If a person has let out the premises as an Attorney of some other person for the benefit of some other person and he is only collecting rents and passing it on to the person for whose benefit the premises is let out, then such a person cannot be considered as owner unless he is able to show that the person for whom he is acting has relinquished his rights in his favour and after letting it out as Attorney he subsequently became the owner. This Court on a number of occasions, held that the concept of ownership under Delhi Rent control Act is different from the concept of ownership under Transfer of Property Act and ownership under DRC Act it is not the absolute ownership."
20. In another authority reported as 153 (2008) DLT 247 titled as Bharat Bhushan Vij Vs.Arti Teckchandani, it was held by Hon'ble High Court and I quote:-
" I consider that where a frivolous challenge is made to the title of the landlord contrary to settled legal position just to prolong the proceedings, such a challenge can be altogether ignored by the ARC. When a tenant takes a plea that the landlord, who had filed the eviction petition was not the owner of the premises, the tenant is obliged to disclose to the Court as E. No.36/11/09 page 15 of page 26 to who was the owner of the premises and under who he/she was tenant. In the present case, it is not disputed by the petitioner that the premises was purchased from erstwhile owner by Sh.T.A.Teckchandani and Sh.T.A.Teckchandani became the landlord owner of the premises. Smt.Aarti Tekchandani, the landlady who filed the eviction petition for bona fide requirement was daughter-in-law of Sh.T.A.Teckchandani and had been living at the ground floor House No.,124, New Rajinder Nagar. She claimed that the premises in question came to her by way of a Will left behind by Sh.T.A.Tekchandani. "
21. Adverting back to the facts of present case, the certified copy of judgment/order dated 27.10.1972 as passed by Hon'ble High court in suit no.302/72 is proved as Ex.PW-1/3 and the copy of Award is proved as Ex.PW-1/2. The copy of application as filed on behalf of Sh.Jagdishwar Dayal, sole arbitrator u/s 14 and 17 of the Indian Arbitration Act, is proved as Ex.PW-2/1. The photocopy of the application Ex.PW-2/1 and memorandum of partition Ex.PW-1/1 are the photocopies which were filed by the respondent and being admitted document, same were proved by the petitioner's witnesses. PW-2 Sh.Dinesh Dayal, advocate also proved the copy of award Ex.PW-2/3 bearing the signatures of his father on all the pages. PW-2 who is attesting witness to the will Ex.PW-1/4 also identified his signatures on the will, whereby, the tenanted premises was bequeathed by the father of petitioner in her favour.
22. Ld.counsel for respondent vehemently argued that the certified copy of the Award dated 23.02.1972 filed by the petitioner is unstamped, unsigned, unexecuted document and is non-est in law and is not registered in accordance with Section 17 and 49 of the Registration Act and does not confer any right, title and other ownership rights in favour of late Sh.Ishwar Dayal.
E. No.36/11/09 page 16 of page 26
23. On the other hand, ld. Counsel for petitioner argued that certified copies of the award and copies of order dated 27.10.1972 passed by the Hon'ble Mr.Justice Awadh Behari of Delhi High Court, in suit no. 302/1972, which are exhibited as PW-1/2 and Ex.PW-1/3 were issued some time in the year 1973 by the officials of Hon'ble High Court of Delhi, when facility of photocopies were not available and as such, whenever the Arbitrator, concerned parties and concerned officials signed, their names as well as word "sd" were mentioned, while the respondent himself vide a list dated 18.07.2005 in eviction petition no.147/07/05, u/s 14(1)(a) DRC Act, himself filed photocopies of the certified records of suit no.302/1972 to 27.10.1972 as well as photocopy of Index, photocopy of application u/s 14 and 17 moved by the Arbitrator, photocopy of the certified copy of the Memorandum of Partition consisting of only 5 pages, although, it was consisted of 6 pages and the photocopies of original documents i.e. containing the signature of the Arbitrator, respective parties.
24. Much was argued by ld. Counsel for respondent that the High Court record in suit no.302/72 appears to have been tampered as in the decree sheet dated 27.10.1972 of the Hon'ble High Court the award is mentioned as Annexure A, whereas, there is no marking on the Award as Annexure A and in respect of certified copy of award Ex.PW-2/2.
25. I have perused the certified copy of order dated 27.10.1972 Ex.PW-1/3, certified copy of award Ex.PW-1/2, with the photocopies of certified copies of Award Ex.PW-2/2 and Memorandum of partition Ex.PW-1 and I find that order dated 27.10.1972 Ex.PW-1/3 and certified copy of award Ex.PW-1/2 are typed copies, while photocopies of Award Ex.PW-2/2 is photocopy of original record. The typed certified copies have written 'sd' in place of signature, while photocopies have photocopied signature. If one party will file certified copies by mentioning Annexure E. No.36/11/09 page 17 of page 26 'A' in a proceeding and then will obtain the certified copies thereof, it would carry word Annexure 'A', during the process of photostate. If the typed certified copy of award is having word 'sd', it could not be said that the award is unsigned, unexecuted or non-est in law, while the photocopy of same as filed by respondent have signature photocopied. Therefore, the plea of respondent that petitioner played a fraud by tampering the record of Hon'ble High Court in suit no.302/72 or that Partition Deed or Award which are more than 30 years old document, and presumed to be genuine, are tampered one, has no force and is frivolous one.
26. As far as registration of award is concerned, reliance is placed on judgment reported as AIR 1995 SC 471, para 10, wherein it is held that It is the well settled law that the unregistered award per se is not inadmissible in evidence. It is a valid award and not a mere waste paper. It creates rights and obligations between the parties thereto and is conclusive between the parties. Therefore, respondent can't challenge the ownership of respondent on the ground that Award dated 23.02.1972, which was made rule of the court, was unregistered. It is also settled law that probate of will is not necessary in Delhi and executor or legatee can establish his rights without seeking probate. Reliance is placed on 71 (1998) DLT 147 titled as Santosh Kakkar & ors Vs. Ram Parsad & ors. and when the other legal heirs of testator i.e.father of petitioner have not challenged the will, the respondent being tenant, cannot challenge the genuineness of will. It is also admitted case of the respondent that mutation in MCD does not cater any ownership right, then how MCD is necessary party, is unexplained. The plea of respondent that they had always being using one room for the purpose of office has no relevance in view of judgment reported as Satyawati Sharma Vs. Union of India, 149 (2008) DLT 705. The respondent has not disclosed if the E. No.36/11/09 page 18 of page 26 petitioner/landlord to whom he has tendered the rent, is not the owner qua tenanted premises, then who is owner thereof. RW-1 confirmed in his cross examination, recorded on 25.05.2009, that during the lifetime of Sh.Ishwar Dayal and after his death, during the lifetime of his wife and after her death since the petition claimed to be owner/landlady of the tenanted premises, no one has claimed ownership/landlordship from him. The documents i.e. Memorandum of Partition Ex.PW-1/1, certified copy of Award dated 23.02.1972 Ex.PW-1/2, judgment and order dated 27.10.1972 Ex.PW-1/3 by which the award Ex.PW-1/2 has made rule of the court by Hon'ble High Court, will dated 18.09.1974 i.e.Ex.PW-1/4 executed by Sh.Ishwar Dayal, father of petitioner, by virtue of which he bequeathed tenanted premises in favour of petitioner, clearly proves that only petitioner is the owner of tenanted premises.
Bona fide requirement and no other reasonably suitable residential accommodation
27. It is case of the petitioner as deposed in her examination in chief Ex.P-1 that she bona fide require the tenanted premises for residence of herself and for her family members as she does not own any other residential property any where, except the premises, which is in tenancy of the respondent. PW-1 further deposed that four residential flats of exact dimension and containing the same accommodation were built by the father of petitioner, as shown in Ex.PW-1/2 and Ex.PW-1/4 and since last 9 years, she is residing alongwith her husband at residential flat bearing municipal No.7A-II(7 A/2), Bela Road, Civil Line and after some time, his son Atul Mehra, his wife also came to reside in the same flat and one grandson and grand daughter were born, where the petitioner and her family were residing. PW-1 proved birth certificate and other documents in proof of residence as Ex.PW-1/29 and Ex.PW-1/46. It is further E. No.36/11/09 page 19 of page 26 deposed by PW-1 that the flat, where petitioner and her family are residing, consists of only three rooms. Petitioner and her husband are using one room on the ground floor as bed room and her son and his wife have been using the other room on the first floor as their bed room and only room left on the ground floor is being used by the entire family for multipurpose for watching TV, eating meals, study, meditation, staying of guests etc. as there is no independent drawing room, dining room, study room, guest room, sitting room, Pooja room available to them in the said flat. PW-1 further deposed that her grand children have no independent bedroom both of them are students and grown up now are also require study room. PW-1 proved the site plan of aforesaid flat bearing no.7A/2 Bela road, Civil Line, Delhi where at present, petitioner alongwith her above stated family is residing as Ex.PW-1/47. PW-1 further deposed that the allegation of the respondent that the flat no.7A/2 in her possession consists of 10 rooms, one drawing room are false and baseless and has no iota of truths in it. The flat no.7A/2 is a one and half storey building on an area of less then 100 sq.meter and the flat cannot has such an accommodation as alleged by the respondent and it has only three rooms. PW-1 further deposed that she has no guest room available to her to accommodate her guests and relations, who off and on visit and stay with them and she has married daughter Ms.Ruchi Kaushik, who and her family frequently visit them and many a time stay with them and there is hardly any accommodation available to accommodate them. In her cross examination PW-1 denied the suggestion that she has raised any construction in the rear of 7A/2 and further denied that the construction has been raised with a view to connect 7A/2 to 7A/4 from the rear side. The site plan Ex.PW-1/47 as proved by PW-1, in respect of flat 7A/2, Bela Road, where the petitioner with his family is presently residing is not E. No.36/11/09 page 20 of page 26 disputed when PW-1 was in witness box. Even a suggestion was not given to this witness in respect of availability of rooms in the said premises. RW-1 in his cross examination admitted that petitioner is residing in 7/2 and voluntarily deposed that petitioner was running office of a school in the premises. RW-1 further confirmed in his cross examination that all the flats from 7A/1 to 7A/4 are adjacent to each other and initially they were build similarly and having same accommodation and voluntarily deposed that now the addition and alteration have been made. Furthermore, RW-1 in his cross examination conducted on 17.08.2008 admitted that the suit premises consists of two rooms, a bath room, kitchen and a kolki on the ground floor and a bed room alongwith a store of low hight bathroom and open terrace on the first floor alongwith latrine and bathroom and kolki. Therefore, the plea of the respondent as taken in amended written statement in reply to para no.18(a)(VII) that the petitioner has more than 10 rooms in her possession has no legs to stand, when she is admittedly residing in 7/2 having same accommodation as available in tenanted premises/flat. Moreover, if a office of the school as alleged was being run in the premises no.7/2, Bela Road, it does not curtail the requirement of accommodation of petitioner in any manner. The testimony of PW-1 to the effect that she has no independent drawing room, dining room, study room, guest room, sitting room, Pooja room available to them in the flat where she is residing, remained uncontroverted. Even a suggestion was not given to PW-1 when she was in witness box that she is having sufficient accommodation such as drawing room, dining room, study room, guest room, sitting room, Pooja room etc. It was argued by ld. Counsel for respondent that Sh.Atul Mehra, son of the petitioner is not dependent upon petitioner as he is admittedly managing Shemrock/Shavron School, therefore, he is not dependent upon the E. No.36/11/09 page 21 of page 26 petitioner and thus the need of Sh.Atul Mehra, his wife, and two minor children cannot be clubbed with the petitioner's need of bonafide requirement. Admittedly, the petitioner is a senior citizen and atleast, requires the company of one of his son at her this old age and only due to the fact that the son of the petitioner is earning, it cannot be said that he has no right to live with his parents. Landlord is not required to break up his family only for the convenience of tenant. In view of above reasons and discussion, I am of the considered opinion that the requirement of the petitioner is bonafide.
28. Now the question comes to decide, whether the petitioner has other reasonably suitable residential accommodation or not. It is the plea of the respondent as taken in the amended written statement that petitioner is clearly owing property no.69, UB Jawahar Nagar, (through her husband) and in any case, has much more reasonable alternative accommodation at 7A/2, 7A/3 and 7A/4, Bela Road, then is required by her for her bonafide need. It is further plea of the respondent that Sh.Vipul Mehra, son of the petitioner is residing in the premises, 69, UB Jawahar Nagar, which is a palatial building comprising of 28 rooms of which, his father is the joint owner alongwith his grand father. In this context, PW-1 in his examination in chief deposed that the property bearing no.69, UB Jawahar Nagar is the self acquired property of her father in law Sh.Sohan Lal Mehra and he is also assess to house tax as owner thereof and proved the copy of sale deed as Ex.PW-1/48 and house tax receipts as Ex.PW-1/49 and PW-1/50. PW-1 further deposed that she and her husband have no right, title or interest in the said property at all at any time and even otherwise the accommodation available for their residence was on the third floor of the said property and she and her husband were finding great difficulty in climbing stairs as they both are senior citizen. PW-1 further E. No.36/11/09 page 22 of page 26 deposed that lot of differences have also cropped up between her and her in laws as a result of which, lot of misunderstanding and bickerings cropped up between her and her in laws and with a view to avoid all such situations, his elder son Vipul Mehra advised them to shift to his flat no. 7A/2, Bela Road, which he has purchased from her sister Usha Rani vide sale deed Ex.PW-1/51. PW-1 further deposed that she was earlier living at 69 UB Jawahar Nagar, Delhi, the property owned by her father in law and at present, in the flat which is owned by her son and thus, had always, had to leave and license basis in the properties of her in laws and thereafter of her son. PW-1 deposed that her son Atul Mehra has been running a school under the name of Shemrock/Shevron from flat no.7A/3 and 7A/4 and she has no right, title or interest with said flat 7A/3 and 7A/4, Bela Road, Civil Line, Delhi at any time. In her cross examination, PW-1 confirmed that her son Atul Mehra is running a school in property no.7A/3 and 4, which belongs to her sisters.
29. RW-1 in his cross examination conducted on 02.06.2009, to a specific question as put by ld. Counsel for petitioner, in respect of photographs of site plan of Jawahar Nagar property voluntarily deposed that husband of the petitioner told him that the property comprises of 28 rooms on all the floors and he cannot tell even approximately the area of the plot on which the said property is built and denied the suggestion that property at Jawahar Nagar does not consist of 28 rooms nor it is four storeyed and deposed that he has stated approximately. Thus, there is no reliable evidence on record in respect of accommodation available if any in property at Jawahar Nagar, Delhi. Now the question arises that if the petitioner is owner of a property which is bequeathed in her favour, by her father, i.e. suit property and she does not wish to reside with her in laws, either due to differences or due to insufficient accommodation, whether E. No.36/11/09 page 23 of page 26 such property can be considered as reasonably suitable residential accommodation or not.
30. In an authority reported as 110 (2004) DLT 193, titled Jitender Kumar Jain & Ors.Vs.M/s.J.K.Horticultural Produce Marketing & Processing Cor.Ltd., it was held by Hon'ble High Court and I quote:-
"Any property or accommodation over which landlord has no legal control or legal right to occupy cannot be included in accommodation available with such landlord for ascertaining his requirement: ARC grossly erred on facts and on factual position regarding accommodation available with petitioners and their requirements : impugned order set aside."
31. In another authority reported as 153 (2008) DLT 247 titled as Bharat Bhushan Vij Vs.Arti Teckchandani, it was held by Hon'ble High Court and I quote:-
"(ii)Delhi Rent Control Act,1958 - Sections 14(1)(e), 141)(h) - Bona fide Requirement - Landlady had no other accommodation except one occupied by tenant - Other accommodation where she was living, belonged to her son and not to her - ARC committed no error of law or fact in passing eviction order - It is not for tenant to dictate terms to landlord as to how he or she should live and where to live"
32. In an authority reported as 113 (2004) DLT 527 titled as Sohan Singh & Ors Vs. Prakash Devi & Ors., it was held by Hon'ble High Court and I quote:-
"Section 14(1)(e) read with Section 25B - Bona fide Requirement : Leave to defend : Landlord's case is he is residing in Naraina Vihar, in house owned by his son : There are differences between his wife and daughter- in-law, landlord wants to shift to his own premises : Landlord 80 years of E. No.36/11/09 page 24 of page 26 age and his wife about 78 years of age : Landlord requires assistance of his younger son and premises in question required for his younger sons family alongwith for him and his wife : Controller given cogent reasons has that requirement of landlord is bona fide and he has no suitable accommodation : Reasoning of controller needs no interference."
33. In an authority reported as 113 (2004) DLT 673 (SC) titled as Kamal Tanan (deceased) by LRs Vs. M.L.Vasistha (deceased) by LRs, it was held by Hon'ble Supreme Court of India and I quote:-
"(ii) RENT CONTROL & EVICTION LAWS: Bona Fide Requirement:
Appellant owns only one flat tenanted to respondent : It was required for her own occupation and for occupation of her husband, retired from army : Need of appellant bona fide - Delhi Rent Control Act, 1958 - Section 14(1)(e) r/w Section 25B"
34. Adverting back to the facts of present case, petitioner is the owner of suit property which was bequeathed in her favour by her father and except that there is no evidence on record that petitioner is having any other property owned by her. The property bearing no.7A/2 where at present, petitioner is residing alongwith her husband, son, daughter in law and two grand children, belongs to her son and is not sufficient accommodation to accommodate the family of the petitioner as already discussed above. There is no evidence in respect of accommodation available if any, in property no.69, UB Jawahar Nagar, Delhi and in view of the testimony of petitioner that due to some differences, she does not wish to reside in that property which belongs to her in laws, it cannot be said that petitioner has any other reasonably suitable residential accommodation.
35. In view of above reasons and discussions, the petitioner has been able to prove her case that the tenanted premises is required by E. No.36/11/09 page 25 of page 26 petitioner/landlady bonafide as a residence for herself and family members dependent upon her, being owner thereof, and the petitioner/landlady, has no other reasonably suitable residential accommodation available with her. In result, the petition stands allowed and eviction order is hereby passed in favour of petitioner and against the respondent, in respect of residential flat/premises bearing municipal number 7A-I(7A-1), which was originally a part of property no.7, Bela Road, Civil Lines, Delhi-110054, as per site plan Ex.PW-1/27, however, this order shall not be executable for a period of six months from today in view of section 14(7) of DRC Act 1958. File be consigned to record room.
Announced in open court ( S.K.MALHOTRA ) on 12.09.2011. SCJ/RC/(North)/DELHI E. No.36/11/09 page 26 of page 26