Delhi District Court
Sh. Surender Kumar Jain vs Smt. Sudesh Jain on 1 May, 2018
In the Court of CCJ cum ARC, Pilot Court (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E225/17
Regd. ID No. 259/17
In the matter of :
Sh. Surender Kumar Jain
S/o Late Sh. Ajodhaya Parsad Jain,
R/o H. No. 4576, 2nd Floor, Gali Nathan Singh,
Pahari Dhiraj, Sadar Bazar, Delhi110006. ...........Petitioner
Versus
1. Smt. Sudesh Jain
W/o Late Sh. Sushil Kumar Jain
2. Sh. Gaurav Jain
S/o Late Sh. Sushil Kumar Jain
3. Sonal Jain
D/o Late Sh. Sushil Kumar Jain
4. Priny Jain
D/o Late Sh. Sushil Kumar Jain
All R/o. H. No. 4576, 2nd Floor, Gali Nathan Singh,
Pahari Dhiraj, Sadar Bazar, Delhi110006. ...........Respondents
Date of institution : 07.04.2017 Date of reserved for judgment : 05.04.2018 Date of judgment : 01.05.2018 Decision : Dismissed JUDGMENT :
1. An eviction petition has been filed by the petitioner Sh. Surender Kumar Jain against the tenants/respondents Smt. Sudesh Jain and Sh. Gaurav Jain for vacation of the tenanted premises, i.e., One room on the second floor of H. No. 4576, Gali Nathan, Pahari Dhiraj, Sadar Bazar, E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 1 of 30 Delhi110006, as shown in red colour in the site plan annexed alongwith the petition, on the ground of bonafide requirement u/s 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as 'the DRC Act').
2. The case of the petitioner is that the petitioner and his wife Smt. Santosh Kumari Jain had purchased the property bearing no. 4576, 2 nd Floor, Gali Nathan Singh, Pahari Dhiraj, Sadar Bazar, Delhi110006 from Sh. Ajay Kumar Jain and his wife Smt. Renu Jain vide sale deed dated 19.03.1999. Smt. Santosh Kumari Jain had expired on 02.11.2012 leaving behind legal heirs. The petitioner is already the owner of half undivided portion in respect of the property and after the death of Smt. Santosh Kumari Jain, he also became the owner of 6/7 th share of remaining half portion in respect of the property in question, as the petitioner's two sons, namely, Vijay Jain and Ajay Jain and his three daughters, Smt. Manju Jain, Smt. Mohini and Asha Jain executed Relinquishment Deed dated 06.12.2016 in favour of the petitioner.
3. The family of the petitioner consists of his two sons, namely, Sh Vijay Kumar Jain and Sh. Ajay Kumar Jain, aged about 59 years and 55 years respectively and said Sh. Vijay Kumar Jain has two sons, Dhiraj Jain and Ankush Jain and one daughter. One son, namely, Sh. Dhiraj Jain and daughter, namely, Nidhi are married and other son is also of marriageable age. Sh. Ajay Kumar Jain has one son, namely, Sh. Prince Jain and one daughter Smt. Priyanka, who is a divorcee. Both the sons of the petitioner are residing in a rented property. Sh. Vijay Kumar Jain alongwith his family is residing at rented property bearing No. 64, Khurji E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 2 of 30 Khash, JExtention, Laxmi Nagar, Shadhara, Delhi, while Sh. Ajay Kumar Jain alongwith his family is residing at rented property bearing No. 32A, Model Basti, Karol Bagh, Delhi. The petitioner is an old man of 86 years of age and had already undergone ByPass surgery of heart and is also a patient of diabetes and other old aged diseases and therefore, he need his sons to look after him. Further, it is averred by the petitioner that his son Sh. Ajay Jain had met with an accident on 02.03.2015 and his head was seriously injured and he got paralyzed and his leg was also injured. At present he cannot move properly. The petitioner's son Sh. Ajay has a flat on the 3rd floor of the same building. As he had taken loan to cover up the loss in his business on account of betrayal by a business person and abovesaid accident, resulted in him being indebted. Now, he wants to sell out this property to repay his loans. And on 28.12.2015 he had already sold his one flat in the same premises to the respondent no. 1 (his real sister) as already mentioned.
4. It is further averred by the petitioner that the petitioner has 11 rooms in premises but he is in possession of 3 rooms, 1 toilet, 1 bathroom and 1 store, out of the said 11 rooms. Whereas, the respondents have the possession of 2 rooms, 1 kitchen. In one room of the aforementioned rooms, the respondent is running his workshop. One tenant, namely, Mahesh Jain has possession of 2 rooms out of the 11 rooms, whereas, one tenant, namely, Raja Ram has possession of 2 rooms and another tenant, namely, Arun Gupta has possession of 1 room out of said 11 rooms.
5. Further, it is submitted by the petitioner that the financial position E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 3 of 30 of petitioner's sons Vijay Kumar Jain and Ajay Kumar Jain, who are residing on rented premises, is not good and they are not capable of paying rent. Therefore, they want to shift in the above mentioned premises but the petitioner does not have enough rooms for their sons and their family and therefore, want to get the said rooms vacated by the respondent. One son of Sh. Vijay Kumar Jain, namely, Dheeraj jain is married and now he wants to reside in a separate portion, therefore, he needs two room set with kitchen, toilet, bathroom and similarly, Vijay Kumar Jain also needs one room set with kitchen, toilet, bathroom, dining hall for residing separately and another room is needed by Ankush Jain. Sh. Vijay Kumar Jain also have a married daughter, who frequently visits her parental home and need a guest room and petitioner also have three daughters exclusive of Sudesh Jain, i.e., the respondent, who frequently visit their parental home and need guest room. Further, it is submitted that one son of Sh. Ajay Kumar Jain, namely, Prince Jain is also of marriageable age and needs one room for residing separately and on account of the paucity of accommodation, he is facing problem in finding match for himself. Sh. Ajay Kumar Jain also needs one room set with kitchen, toilet, bathroom and dining hall for residing separately. Sh. Ajay Kumar Jain also has a divorced daughter, who needs one room for residing separately. Neither the petitioner nor any of his sons and their family members have got any other alternative reasonable suitable accommodation available with them and as such, both the sons of the petitioner and their family members are dependent upon the petitioner for E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 4 of 30 their residence and as such, the petitioner requires the premises bonafide for his residence and for his both sons and their family members.
On the above stated grounds, prayer is made for eviction of the respondents from the tenanted premises.
6. Summons were served upon the respondents, who filed leave to defend application, which was allowed vide order dated 08.06.2017 and the respondents were given liberty to contest the present eviction petition. Thereafter, written statement was filed by the respondents denying the contentions made by the petitioner in the present eviction petition stating that the present petition is not maintainable as the respondent no. 1 is also the coowner/cosharer in the premises in question alongwith the petitioner. Admittedly, the respondent no. 1 Smt. Sudesh Jain is one of the legal heir of the earlier owner Smt. Santosh Kumar Jain, who expired intestate on 02.11.2012. The respondent no. 1 has inherited 1/7th undivided share in the entire second floor of the property. Initially, the predecessorininterest of the respondent, namely, Sh. Sushil Kumar Jain was the tenant in the premises in question, however, unfortunately, he expired and the tenancy devolved upon the respondents. However, after the death of earlier owner Smt. Santosh Kumari Jain, respondent no. 1 became the coowner to the extent of 1/7th undivided share in the entire second floor portion of property in question including the rooms in question. In this manner, the status of respondent no. 1 changed from the cotenant to coowner/cosharer in the property in question. The property is admittedly undivided and the share of the respondent no. 1 is still to be E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 5 of 30 specified, and the room in question comes in the undivided share of the respondent no. 1. Hence, there is no relationship of landlord and tenant between the parties as respondent no. 1 is not the tenant, rather she is the coowner of the property to the extent of 1/7th undivided share in the same.
7. Further, it is submitted that prior to filing the present petition, the petitioner had also filed another similar petition against the deceased husband of the respondent no. 1 vide petition No. E480813/2016 which is presently pending in the Court of Sh. Deepak Wason, Ld. RC, Central, Tis Hazari Courts, Delhi. In the said petition, the petitioner has not whispered a single word regarding the present petition u/s 14 (1) (e) of the DRC Act. It is further submitted that the petitioner has sent a legal notice dated 29.03.2017, however, even in the said legal notice dated 29.03.2017, the petitioner has not whispered a single word regarding the alleged bonafide requirement as claimed by him in the present petition.
8. It is submitted that the petitioner is not having cordial relations with his sons Sh. Ajay Kumar Jain and Sh. Vijay Kumar Jain. Even, the petitioner is cooking his food of his own at this age of 86 years. The story about the alleged requirement for the residence of the aforesaid two sons and their family is totally false, incorrect, fabricated and concocted by the petitioner. The petitioner or his family members do not require any premises/accommodation for their residence as they are having sufficient residential accommodation at their disposal which is more than enough and many rooms in the same property are lying vacant at the E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 6 of 30 disposal of the petitioner and his sons. The petitioner has concealed the accommodation available at his disposal and also at the disposal of his sons and other family members. The petitioner has filed incorrect and incomplete site plan. It is submitted that the respondents have already filed the correct and actual site plan of the entire property which clearly shows the accommodation/rooms etc. available at the disposal of the petitioner and his family members on every floor of the property in question. It is submitted that the property in question is a big property constructed upto fourth floor.
9. It is further submitted that the petitioner has filed the copies of the alleged lease deeds dated 07.03.2016 and 15.10.2015. The said lease deeds are forged and fabricated documents which have been procured and fabricated by the petitioner. The petitioner has failed to disclose as to where the said family members were residing prior to execution of the aforesaid alleged lease deeds. Even otherwise, the said lease deeds have been executed in the name of grandsons of the petitioner, namely, Sh. Prince Jain and Sh. Ankush Jain. It is clear by the perusal of these alleged lease deeds that only grandsons of the petitioner are residing in the said properties and not the other family members of the petitioner including his sons Sh. Ajay Kumar Jain and Sh. Vijay Kumar Jain and their respective wives and the remaining children.
10. It is further submitted that the petitioner has alleged that the second floor portion of the building was purchased by him alongwith his wife from Sh. Ajay Kumar Jain and his wife in the year 1999. The aforesaid E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 7 of 30 vendor Sh. Ajay Kumar Jain is none else but own son of the petitioner, for whom the petitioner is seeking the alleged bonafide requirement for residence in the tenanted premises in question. It is not believable that a person who himself sells the property in question to his father, requires the same for his residence now. The property was sold by him as the same was surplus with him and it was not required by him or his family for any purpose. It is submitted by the respondents that the petitioner has failed to disclose as to where his both the sons Sh. Vijay Kumar and Ajay Kumar Jain are residing at present alongwith their respective family members. The petitioner also failed to disclose the residence, details of his daughters. Both the sons of the petitioner, namely, Sh. Vijay Kumar Jain and Sh. Ajay Kumar Jain had always resided separately from the petitioner. The petitioner has concocted a false story by making the family members of his two sons as a tool against the respondents.
11. Sh. Ajay Kumar Jain, who was the owner of the entire building upto fourth floor, had recently sold off the third floor portion to respondent no. 1 Smt. Sudesh Jain on 28.12.2015 and had there been any bonafide requirement, the same would not have been sold. The petitioner is required to file the complete site plan of all the four floors of the property No. 4576 to disclose as to which room is in possession of which person. Further, it is submitted by the respondents that the petitioner has concocted a frivolous story of alleged loan allegedly taken by his son Sh. Ajay Kumar Jain on account of betrayal by the business person. The allegations are vague and general in nature without any details in this E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 8 of 30 regard.
12. Further, it is submitted by the respondents that the petitioner and his family members are having various properties at their disposal, which are as under : ➢ Property no. 4576, Gali Nathan Singh, Pahari Dhiraj, Sadar Bazar, Delhi06 : This property is consisting of four floors earlier owned by the son of the petitioner, namely, Sh. Ajay Kumar Jain, who sold the second floor portion to the petitioner and his wife in the year 1999. Further, he recently sold part of the third floor of this property to respondent no. 1, Smt. Sudesh Jain. Various rooms/portions are still lying vacant/without any use with the petitioner and Sh. Ajay Kumar Jain in this property on every floor as shown in the site plan filed by the respondents. In fact, Sh. Ajay Kumar Jain and his family members are in possession of three rooms, one small room on the ground floor, three rooms, kitchen, latrine, two bathroom on third floor, three rooms, kitchen, latrine, two bathrooms on fourth floor and the entire terrace floor.
➢ Property no. 3852, Gali Mandir Wali, Pahari Dhiraj, Delhi 110006.
➢ Property no. F38, West Jawahar Park, Gali no. 10, Laxmi Nagar, Delhi110092.
➢ Property no. 64, Third Floor, Khureji Khas, JExtn., Laxmi Nagar, Shahdara, Delhi110092.
E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 9 of 30➢ Property No. 4979, Ahata Kidara, Pahari Dhiraj, Delhi110006. ➢ Property No. A32, Third Floor, Model Basti, Karol Bagh, New Delhi110055.
13. It is further submitted by the respondents that the petitioner has falsely alleged about the details of his family members, i.e., the sons, daughters, grandsons, etc. without any documentary proof. It is submitted that the petitioner is not entitled to receive the possession from the respondents regarding the portion of the property in their occupation and possession. The respondent no. 1 is going to file a suit for partition against the petitioner to get her 1/7th undivided share specified in the property in question by the competent Court of law. It is hard to believe that the son and grandsons of the petitioner want to shift from the locality of Karol Bagh, New Delhi and Laxmi Nagar, Delhi to the Slum Area of Delhi at Pahari Dhiraj where even scooter parking is not available and the petitioner and his family members have many cars at their disposal.
14. It is averred by the respondents that perusal of marriage cards of Sh. Dheeraj Jain and Sh. Ankush Jain shows that those have not been issued/sent by the petitioner Sh. Surender Kumar Jain who claims himself to be the eldest member of the family and claims that his sons and grandsons gives him lot of respect and they need the tenanted premises to reside alongwith the petitioner Sh. Surender Kumar Jain. It is denied that the petitioner need his sons to look after him as alleged. It is also denied that other family members of the petitioners want to reside in their portion and they bonafide require the premises, as alleged. The purchase E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 10 of 30 of Flat on third floor by the respondent no. 1 has no relevance to the present case. It is denied that Ajay Jain was seriously injured and paralyzed and at present he cannot move properly as alleged. It is further denied that the petitioner is only in possession of 3 rooms, 1 toilet, 1 bathroom and 1 store, out of the 11 rooms, as alleged. It is also denied that the other rooms are in possession of Mahesh Jain, Raja Ram and Arun Gupta, as alleged. It is further denied that the petitioner's sons are residing on rented premises or their financial position is not good and they are not capable of paying rent, therefore, want to shift in the above mentioned premises.
15. Replication to the written statement has been filed by the petitioner, wherein the petitioner has denied all the averments made by the respondents in their written statement, reaverring what was averred by him in the main eviction petition. It is submitted that on demise of the erstwhile tenant, the tenanted premises was inherited by the respondents jointly. The respondents are in possession of two rooms and one kitchen area measuring 39.4375 sq. yds. However, after the demise of Smt. Santosh Kumari Jain, her one half share has devolved upon her legal heirs to the extent of 1/7th share each. It is not denied that after the demise of Smt. Santosh Kumari Jain, respondent no. 1 became the coowner in the entire second floor portion of property no. 4576, Gali Nathan Singh, Pahari Dhiraj, Sadar Bazar, Delhi, including the room in question to the extent of 1/7th undivided share measuring 104 sq. yds. i.e., including the common toilet, lobby, stairs and open space. It is specifically denied that E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 11 of 30 there is no relationship of landlord and tenant between the parties as respondent no. 1 is not the tenant, rather she is the coowner of the property to the extent of 1/7th undivided share in the same. The respondents are in possession of more than their share inherited after demise of Smt. Santosh Kumari Jain which is part of tenanted premises. It is denied that many rooms in the property in question are lying vacant without any use or the story of alleged bonafide requirement by the petitioner for himself and his sons is clearly false. It is submitted that the petitioner is the owner of second floor of the property and petitioner has no concern with other floors of the property. The sons of the petitioner are residing in the rental accommodation with their respective family. It is wrong to allege that only the grandsons, namely, Sh. Prince Jain and Sh. Ankush Jain have been residing in the said properties and not the other family members of the petitioner including his sons, Sh. Ajay Kumar Jain and Sh. Vijay Kumar Jain with their respective wives and remaining children. The son of the petitioner has suffered huge financial loss in the business and as such, he had sold his properties and now the son of the petitioner has no property for living for himself and his family members. The son of the petitioner was residing with the petitioner but after huge financial loss in his business, he sold the property and started residing in a rental accommodation. It is denied that both the sons of the petitioners are not having good/cordial relations with the petitioner. It is not denied that Ajay Kumar Jain is in possession of rental three very small rooms of 3' x 5', 3' x 5' and 4' x 6' on ground floor only. Further, it E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 12 of 30 is submitted that property no. 3852, Gali Mandir Wali, Pahari Dhiraj, Delhi110006 is a rental commercial property. With respect to property no. F38, West Jawahar Park, Gali no. 10, Laxmi Nagar, Delhi110092, it is submitted that the petitioner is not in possession of this property. Further, property no. 64, Third Floor, Khureji Khas, JExtn., Laxmi Nagar, Shahdara, Delhi110092 is a rental accommodation in the name of Sh. Ankush Jain. Further, it is stated that the petitioner has no concern with the property No. 4979, Ahata Kidara, Pahari Dhiraj, Delhi110006 and property No. A32, Third Floor, Model Basti, Karol Bagh, New Delhi110055 is a rental accommodation in the name of Sh. Prince Jain.
16. During evidence, the petitioner examined four witnesses. Petitioner himself stepped into the witness box as PW1 and deposed on the lines of the eviction petition. Further, he relied upon the following documents :
a) Site plan : Ex. PW1/A
b) Sale Deed dated 19.03.1999 : Mark 'C'
c) Relinquishment Deed dated 20.12.2016 : Ex. PW1/C
d) Copy of judgment & decree dated 24.12.2014 : Ex. PW1/D
e) Marriage Cards : Ex. PW1/E (colly.)
f) Lease Deed dated 15.10.15 and 19.09.16 : Ex. PW1/F (colly.)
g) LPG Gas supplied receipts : Ex. PW1/G (colly.)
h) Medical papers of petitioner's treatment : Ex. PW1/H (colly.)
i) Medical paper of treatment of Ajay Kumar Jain : Ex. PW1/I (colly.)
j) Rent receipts issued to the deceased husband of the : Ex. PW1/J (colly.) respondent no. 1
k) Counterfoils of rent receipts issued to respondents : Ex. PW1/K (colly.)
l) Legal Notice dated 29.03.2017 : Ex. PW1/L
m) Postal receipts : Ex. PW1/M (colly.)
n) Legal Notice dated 13.04.2017 : Ex. PW1/O
o) Postal Receipts : Mark 'B'
p) Photocopy of lease deed dated 07.03.2016 : Mark 'A' Ms. Asha Jain, daughter of Sh. Surender Kumar Jain, entered into the E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 13 of 30 witness box as PW2 and deposed in sync with PW1.
Sh. Vijay Jain, stepped into the witness box as PW3 and he also deposed on the lines of the eviction petition.
Sh. Ajay Jain, also stepped into the witness box as PW4 but after partial crossexamination, he did not turn up and later on statement of the petitioner, his name was dropped from the list of witnesses.
17. In her turn, the respondent no. 1 examined herself as RW1 and deposed on the lines of the written statement. Further, she relied upon the site plan exhibited as Ex. RW1/1 and copy of sale deed in her favour by son of petitioner, namely, Ajay Jain dated 22.12.2015 as Ex. RW1/2.
18. I have heard the contentions of both the parties and have also gone through the judicial record.
Essential ingredients of Section 14(1)(e) of DRC Act, 1958. i. Petitioner is the owner and landlord in respect of the tenanted premises;
ii. He requires the premises bonafide for himself or for family members dependent upon him;
iii. He has no other reasonable suitable accommodation. Ownership & existence of landlordtenant relationship :
19. In the present case, the respondents have disputed the existence of landlordtenant relationship between the petitioner and respondent no. 1 on the ground that respondent no. 1, being the legal heir of the admitted erstwhile owner Smt. Santosh Kumari Jain, became the coowner of the property to the extent of 1/7th undivided share after the death of Smt. Santosh Kumari Jain. The petitioner has stated that he and his wife Smt. E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 14 of 30 Santosh Kumari Jain had purchased the property in question from Sh.Ajay Kumar Jain and his wife Smt. Renu Jain vide Sale Deed Mark 'C'.
20. It is admitted by the petitioner that respondent no. 1 became the co owner of the property in question after the death of Smt. Santosh Kumar Jain, being one of her legal heir to the extent of 1/7th undivided share. However, it is averred by the petitioner that the portion in occupation of the respondents is more than 1/7th undivided share. Petitioner has also relied upon the Relinquishment Deed Ex. PW1/C to submit that both his sons Vijay Kumar Jain and Ajay Kumar Jain and three daughters, namely, Manju Jain, Mohini Jain and Asha Jain have released their share in favour of the petitioner. The tenanted premises was originally let out to the husband of respondent no. 1, namely, Late Sh. Sushil Kumar Jain, as shown in red colour in the site plan Ex. PW1/A. Since husband of respondent no. 1 was a tenant under the petitioner and his deceased wife Smt. Santosh Kumari Jain, therefore, respondent no. 1 has inherited the tenancy rights from her deceased husband alongwith other respondents, who are sons and daughters of late Sh. Sushil Kumar Jain. RW1 during crossexamination has admitted that after the death of her husband Sh. Sushil Jain, she and her son Gaurav Jain are paying rent to the petitioner Sh. Surender Kumar Jain and also signing the rent receipts. The petitioner has relied upon the counterfoils of the rent receipts for the month of March & April, 2017 Ex. PW1/K (colly.). Hence, from the statement made by PW1 as well as RW1 and the rent receipts Ex. PW1/K (colly.), it E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 15 of 30 is clear that there exists landlordtenant relationship between the parties. Once the respondents are paying rent to the petitioner qua the premises in question, she is estopped u/s 116 of the Indian Evidence Act, from denying the landlordship of the petitioner over the premises in question. Moreover, in the case of P.K. Jaiswal v. Bibi Husn Bano, AIR 2005 SC 2857, the Hon'ble Supreme Court reiterated its view taken in T. Lakshamipathi v. P. N. Reddy, AIR 2003 SC 2427 and India Umbrella Manufacturing Co. v. B. Aggarwal, AIR 2004 SC 1321, by referring to Section 111 (d) of TP Act, to hold that merger of tenancy with ownership brings an end to tenancy only if merger is complete and not partial. Thus, if the tenant purchases share of the coowner in the tenanted premises, still he remains tenant and is liable to eviction in a suit filed by other co owners, unless he purchases the shares of all the coowners. In the present case, the tenant/respondent no. 1 has been devolved upon with the coownership, being one of the Lrs of the deceased erstwhile coowner Smt. Santosh Kumari Jain. However, she has continued to make payment of rent to the surviving coowner, i.e., the petitioner (her father). Hence, the existence of landlordtenant relationship for the purpose of the DRC Act stands proved.
21. The respondent no. 1 as RW1 has stated that after the death of her mother, she is also coowner/cosharer of 1/7th undivided share in the entire second floor of the property in question. She is going to file a suit for partition against the petitioner to get her 1/7th share specified in the property in question by the competent Court of law. PW1 has admitted E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 16 of 30 that 1/7the share of the respondent has not been specified yet. Another argument raised on behalf of the respondent is that one of the coowner can file and maintain the eviction petition, without joining the other co owners, only in case, other coowners do not object. However, in the present case, the respondent, being one of the coowner is objecting to the institution of the present eviction petition and hence, it is averred that on this ground alone, the eviction petition is liable to be dismissed. It is well settled principle that one of the coowners can file a suit for eviction against a tenant of the property generally owned by the coowners. This principle is based on the doctrine of agency as the coowners file suit for eviction against the tenant on his own behalf in his right as well as agent of other coowners. It has been held in India Umbrella Manufacturing Co. v. Bhagabandei Aggarwala (dead) by LR Savitri Aggarwala, (2004) 3 SCC 178, that the consent of other coowners is assumed as taken, unless it is shown that the other coowners were not agreeable to eject the tenant and the suit was filed inspite of their disagreement. In the event, a coowner objects, the same may be a relevant fact. In the present case, the respondent no. 1 is admittedly one of the coowner whose share is not yet specified and she was one of the coowner even on the date of institution of the present petition, being LR of late Smt. Santosh Kumari Jain. Hence, in the absence of her no objection, doubt arises whether the present eviction petition being filed without obtaining NOC/consent of all coowners is maintainable or not.
22. The respondents have also disputed the site plan filed by the E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 17 of 30 petitioner stating that the same is incorrect. Further, it is averred by the respondents that the petitioner has not given the complete description of the premises in question as the petitioner is seeking eviction of the respondent from one room on the second floor of the suit property as mentioned in para no. 8 of the eviction petition, whereas, during the proceedings of the case, it is himself stated by the petitioner that the respondents are in possession of two rooms and one kitchen, i.e., area measuring 39.4375 sq. yds.. In the site plan also, the petitioner has shown only one room to be in possession of the respondent in colour red, of which eviction is sought. However, during crossexamination, the PW1 has admitted that the respondent is in possession of two rooms. Moreover, the respondents have also filed their own site plan Ex. RW1/1. Thus, from the own version of the petitioner, it stands proved that the petitioner has not described the tenanted premises in occupation of the respondent correctly. It cannot be denied that without correct description of the tenanted premises, any order of eviction would be unenforceable. Furthermore, perusal of both site plan filed by the petitioner and the respondents shows that there is difference between the said two site plans even of the second floor, i.e., the property owned by the petitioner. Thus, it seems that the petitioner is seeking partial eviction of the respondents which is not maintainable.
Bonafide requirement :
23. It is averred by the petitioner that the tenanted premises is bonafide required by the petitioner for the residence of his sons, Sh. Ajay Kumar E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 18 of 30 Jain and Sh. Vijay Kumar Jain, who are presently residing in the rented accommodations. The petitioner has also placed on record the copy of the lease deeds Ex. PW1/F (colly.) and Mark 'A' in order to prove that both his sons are presently residing in the rented accommodations. Per contra, it is averred by the respondents that prior to filing the present petition, the petitioner had also filed another similar petition against the deceased husband of the respondent no. 1 vide petition No. E 480813/2016 which is presently pending in the Court of Sh. Deepak Wason, Ld. RC, Central, Tis Hazari Courts, Delhi. In the said petition, the petitioner has not whispered a single word regarding the present petition u/s 14 (1) (e) of the DRC Act. It is further submitted that the petitioner has sent a legal notice dated 29.03.2017, however, even in the said legal notice dated 29.03.2017, the petitioner has not whispered a single word regarding the alleged bonafide requirement as claimed by him in the present petition.
24. It is submitted that the petitioner is not having cordial relations with his sons Sh. Ajay Kumar Jain and Sh. Vijay Kumar Jain. Even, the petitioner is cooking his food of his own at this age of 86 years. The story about the alleged requirement for the residence of the aforesaid two sons and their family is totally false, incorrect, fabricated and concocted by the petitioner. The petitioner or his family members do not require any premises/accommodation for their residence as they are having sufficient residential accommodation at their disposal which is more than enough and many rooms in the same property are lying vacant at the E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 19 of 30 disposal of the petitioner and his sons. Further, it is submitted by the respondents that the property in question is a big property constructed upto fourth floor. It is further submitted that the petitioner has filed the copies of the alleged lease deeds. The said lease deeds are forged and fabricated documents which have been procured and fabricated by the petitioner. The petitioner has failed to disclose as to where the said family members were residing prior to execution of the aforesaid alleged lease deeds. Even otherwise, the said lease deeds have been executed in the name of grandsons of the petitioner, namely, Sh. Prince Jain and Sh. Ankush Jain. It is averred that the perusal of these alleged lease deeds show that only grandsons of the petitioner are residing in the said properties and not the other family members of the petitioner including his sons Sh. Ajay Kumar Jain and Sh. Vijay Kumar Jain and their respective wives and the remaining children.
25. It is further submitted that the petitioner has alleged that the second floor portion of the building was purchased by him alongwith his wife from Sh. Ajay Kumar Jain and his wife in the year 1999. The aforesaid vendor Sh. Ajay Kumar Jain is none else but own son of the petitioner, for whom the petitioner is seeking the alleged bonafide requirement for residence in the tenanted premises in question. It is not believable that a person who himself sells the property in question to his father, requires the same for his residence now. The property was sold by him as the same was surplus with him and it was not required by him or his family for any purpose. It is submitted by the respondents that the petitioner has E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 20 of 30 failed to disclose as to where his both the sons Sh. Vijay Kumar an Ajay Kumar Jain are residing at present alongwith their respective family members.
26. Perusal of the record shows that the PW1 has relied upon the Lease Deed dated 15.10.2015 and 19.09.2016 Ex. PW1/F (colly.) and 07.03.2016 Mark 'A' and LPG Gas Supply Receipts Ex. PW1/G (colly.) to show that his son Ajay Kumar Jain with his family is residing on rental property, however, the said lease deed is in favour of grandson Prince Jain and LPG Gas Receipts are in favour of Ajay Kumar Jain. It is not explained as to why the lease deeds have been made in favour of grandson. Moreover, the petitioner has failed to produce the original lease deed dated 07.03.2016 Mark 'A' executed in the same of grandson Ankush Jain stating that the same is lying on Court record. No explanation has been furnished why the lease deed is not in favour of any of the sons of the petitioner, in case, they are residing on rent.
27. During crossexamination, PW1 has stated that his son Ajay Jain has one flat on the third floor of property No. 4576 in his possession and owned by him which is lying locked since 15.10.2015. He also admitted that a gym in the name of P.P. Fitness Centre was being run in the aforesaid flat owned by his son Ajay Jain which is now closed. He has also admitted that except the abovesaid one flat on the third floor, his son Ajay Jain is in possession of three small rooms on the ground floor of property No. 4576. Even though he stated that the said rooms are on rent but no rent receipts are placed on record. He has also admitted that the E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 21 of 30 property in question has four floors and that the entire property was owned by Sh. Ajay Kumar Jain and his wife Smt. Renu Jain. He has stated that one flat owned and possessed by Ajay Kumar Jain on third floor of property No. 4576 was sold by him to respondent no. 1 on 28.12.2015 vide Sale Deed Ex. RW1/2 and prior to the aforesaid sale, his son Ajay Kumar Jain was residing in the said flat alongwith his family. Thus, as per the own admission of PW1, his son Ajay Kumar Jain is in possession and ownership of one flat on the third floor and three small rooms on the ground floor. It is nowhere explained by the petitioner as to how the said flat and three rooms are insufficient for residence of Ajay Kumar Jain and why the same is not being utilized by Sh. Ajay Kumar Jain for his alleged residential need. Moreover, the petitioner is seeking eviction of the tenanted premises for the bonafide need of his son, who is himself the owner of the above mentioned property, which is in his possession, hence cannot be said to be dependent on the petitioner for the purpose of accommodation.
28. It is also stated by the petitioner that the financial position of Sh. Ajay Kumar Jain is not good and he has suffered paralysis. PW1 has relied upon the medical paper of treatment of Ajay Kumar Jain as Ex. PW1/I (colly.) to submit that presently he is not able to move. Further, it is stated that his son Sh. Ajay Jain had taken a loan to cover up the loss in his business on account of betrayal by a business person and abovesaid accident which resulted in him being indebted. It is also stated by PW1 that his son has to vacate the said property in order to repay the debt and E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 22 of 30 now he wants to sell out his property to repay his loan. PW4, Sh. Ajay Kumar Jain entered in the witness box, however, he did not tell the amount of loan taken by him, even though he stated that certain documents with respect to loan transaction were executed. He did not even tell the name of the person from whom he suffered business losses or who betrayed him the year 2012 & 2013. Later, he did not appear for his crossexamination and on statement of petitioner, his evidence was dropped. Moreover, neither PW1 nor PW2 Asha Jain nor PW3 Vijay Kumar Jain could tell the name of the person who had allegedly betrayed the son of the petitioner, namely, Ajay Jain, or due to whom he suffered losses for which reason he has to sell his flat on third floor, as alleged by the petitioner. Hence, the submissions about trying to sell the flat by son of the petitioner Ajay Jain are not substantiated by either any document or the statement of any of the witnesses. As son of the petitioner Ajay Kumar Jain is having property in his ownership and possession, he cannot be termed to be dependent upon the petitioner for accommodation.
29. Further, the premises in question has been let out for non residential purpose to the respondents and the same is being used for non residential purpose till date as per the submissions of PW1 in his affidavit Ex. PW1/1. Even though there is no bar for a landlord to use his property for residential purposes even if the same had been let out for non residential purpose, as held in Dr. T.S. Subramanian (Deceased) By LRs. v. Andhra Bank Ltd., 1989 Supp. (2) SCC 252 /Shri Balaganesan Metals v. M.N. Shanmugham Chetty And Ors., (1987) 2 SCC 707, E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 23 of 30 however, no reason has been furnished by PW1 why he wishes to utilize the property given for nonresidential purpose for residential purpose even when the son for whose requirement he is seeking eviction has under his ownership one flat in the same premises on the third floor.
30. Furthermore, in the present eviction petition, the petitioner has also claimed the eviction for the bonafide requirement of his other son, namely, Vijay Kumar Jain and his family members. Admittedly, the said son Vijay Kumar Jain is residing in rented property bearing No. 64, Khurji Khash, JExtention, Laxmi Nagar, Shadhara, Delhi alongwith his family since last 30 years. The lease deed dated 07.03.2016 is Mark 'A'. Sh. Vijay Kumar Jain has been examined as PW3. Admittedly, PW3 with his family is residing separately from the petitioner since 30 years in rental property. Neither PW1 nor PW3 have deposed how the financial position of PW3 has changed recently for which he wishes to now shift after 30 years to the tenanted premises. Hence, it seems to be a mere fanciful desire of the petitioner.
31. RW1 has categorically stated that the petitioner has been residing alone and cooks his own food , even though, the petitioner is 86 years old as he is not having cordial relationship with his sons Ajay Kumar Jain and Vijay Kumar Jain. She has also referred to the marriage card of Dhiraj Jain and Ankush Jain, i.e., grandsons of the petitioner, to show that they have not been issued or sent through Surender Kumar Jain, i.e. the petitioner herein, who claims himself to be the eldest member of the family and claims that his sons and grandsons give him lot of respect and E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 24 of 30 they need the tenanted premises to reside alongwith the petitioner. The said marriage cards are also relied on by the petitioner as well as PW3 as Ex. PW1/E (colly.) which shows that the name of the petitioner is not mentioned in the marriage card as even a family member/elder in the family. The said marriage card shows the petitioner as only one of the invitees 'Surinder Kumar Jain Ji' for the marriage function. Thus, a doubt arises whether PW3 Vijay Kumar Jain and his family members can be considered to be dependent upon the petitioner for their bonafide requirement as residing separately for the last 30 years.
32. Moreover, the petitioner himself has brought on record subsequent event by moving an application u/s 151 CPC at the time of final arguments about vacation of two rooms by tenant Raja Ram. It is stated that the tenant Raja Ram has vacated two rooms on the second floor and handed over the possession of said rooms to the petitioner. Thus, as per the own admission of the petitioner he is in possession of 6 rooms on the second floor, which can be utilized by the petitioner for his alleged bonafide need which seems to be nothing more than a fanciful desire as he is not able to show that the sons and their family members are in any manner dependent upon the petitioner for accommodation. Availability alternative suitable accommodation :
33. RW1 has stated that the son of the petitioner, namely, Sh. Ajay Kumar Jain is the owner of the entire building upto 4 th floor. The petitioner and his sons are already in occupation and possession of sufficient residential accommodation on all the four floors, however, the E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 25 of 30 petitioner has not disclosed the accommodation available with him or his sons in the same building anywhere in the eviction petition. It is averred that the petitioner has also not disclosed the entire premises and who is in possession of which room. There are various rooms and portions lying vacant without any use with the petitioner and Sh. Ajay Kumar Jain on every floor. Sh. Ajay Kumar Jain and his family members possess three rooms, one small room on ground floor, three rooms kitchen, latrine and two bathrooms on third floor, three rooms, kitchen, latrine and two bathrooms on fourth floor and the entire terrace floor. It is averred that the petitioner and his family members are in possession of the following properties as well :
1) Property no. 3852, Gali Mandir Wali, Pahari Dhiraj, Delhi 110006.
2) Property no. F38, West Jawahar Park, Gali no. 10, Laxmi Nagar, Delhi110092.
3) Property no. 64, Third Floor, Khureji Khas, JExtn., Laxmi Nagar, Shahdara, Delhi110092.
4) Property No. 4979, Ahata Kidara, Pahari Dhiraj, Delhi110006.
5) Property No. A32, Third Floor, Model Basti, Karol Bagh, New Delhi110055.
34. On the other hand, it is submitted by the petitioner that property no. 3852, Gali Mandir Wali, Pahari Dhiraj, Delhi110006 is a rental commercial property. With respect to property no. F38, West Jawahar Park, Gali no. 10, Laxmi Nagar, Delhi110092, it is submitted that the E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 26 of 30 petitioner is not in possession of this property. Further, property no. 64, Third Floor, Khureji Khas, JExtn., Laxmi Nagar, Shahdara, Delhi 110092 is a rental accommodation in the name of Sh. Ankush Jain. Further, it is stated that the petitioner has no concern with the property No. 4979, Ahata Kidara, Pahari Dhiraj, Delhi110006 and property No. A32, Third Floor, Model Basti, Karol Bagh, New Delhi110055 is a rental accommodation in the name of Sh. Prince Jain.
35. Even though PW1 has stated that the three rooms on the ground floor in the property in question in the possession of Ajay Kumar Jain are rented accommodation and the ownership is of Smt. Savita. However, no document has been placed on record to show that the three rooms are rented out to Sh. Ajay Kumar Jain by Smt. Savita. Further, PW1 has stated that on the ground floor, one godown is under the ownership of Sh. Ashok Kumar Jain, one shop in the name and style of Krishna Entree Prop. under the ownership of Nitin Gupta, one shop of name and style Sanjay Matching Center under the owner of Sanjay. One godown under the ownership of Om Prakash, one shop of ladies tailor whose name is not known, one general store under the ownership of Arun and one shop of jewellery is under the ownership of Ravi. It is further stated by PW1 that on the first floor of the suit property, one flat is under the ownership of Govind, one flat is under the ownership of Snehalata Jain and one flat is under the ownership of Chameli Devi. The second floor is under the ownership of Surender Kumar Jain, i.e. the petitioner herein. On third floor, one flat is under the ownership of Sudesh Jain, one under the E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 27 of 30 ownership of Renu Verma and one under the ownership of Ajay Jain. Further, it is stated by PW1 that on the fourth floor, one flat with roof is under the ownership of Suman, one flat is under the ownership of Devesh; with roof and one flat is under the ownership of Shalendar Singh.
36. During crossexamination, the respondent no. 1 has nowhere stated that the ground floor is not occupied by the above mentioned persons, as described above. Further, as regards the first floor, it is stated by RW1 that there are 3 two rooms sets on the first floor of the property bearing no. 4576. First two rooms set is in occupation of Chameli Devi with her children. In the second two rooms set, one Shehalata is residing. However, she has denied that one Govind is residing in third two rooms set on the first floor. The petitioner has failed to produce any document to show that a two rooms set on the first floor is in the possession of one Govind. The burden to prove the same was upon the petitioner, but, the petitioner has failed to produce any document to show that one of the two rooms set on the first floor is in possession of Govind Ram. Hence, it is not proved that the same is not in occupation of Ajay Kumar Jain. Also, the petitioner has himself admitted that two rooms have been subsequently vacated by tenant Raja Ram. Thus, the petitioner is found to be in possession of alternative suitable accommodation which can be used by him for his alleged bonafide need.
37. Thus, keeping in view the aforesaid discussion and in totality of the facts and circumstances, since the son of the petitioner, namely, Ajay E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 28 of 30 Kumar Jain is having property in his own name, he cannot be termed to be dependent upon the petitioner for the purpose of accommodation. Hence, his requirement cannot be considered to be the bonafide requirement. Similarly, the son of the petitioner, namely, Vijay Kumar Jain and his family members have been admittedly residing separately from the petitioner since the last 30 years and from the documents relied upon by the petitioner himself, it is not proved that Sh. Vijay Kumar Jain and his family members are dependent upon the petitioner or are having cordial relations with the petitioner. Further, the petitioner has himself admitted that he is having in his possession of five rooms (2 rooms set vacated by Raja Ram) and one store room. The petitioner is residing alone. It is unexplained by the petitioner as to for what purpose he is utilizing the said 5 rooms and one store room in his possession and why the same cannot be utilized by his son Sh. Vijay Kumar Jain for his alleged need, in case, he wants to shift to the premises in question. Even though, in the application u/s 151 CPC for bringing on record the subsequent event, the petitioner has alleged that the two rooms set vacated by Raja Ram is being utilized by his son Sh. Ajay Kumar Jain, however, Ajay Kumar Jain cannot be said to be dependent upon the petitioner for the purpose of accommodation as he is having accommodation as owner of the properties as discussed above. Thus, the petitioner and his sons are found to be in possession and occupation of sufficient alternate accommodation which has been utilized by them for their bonafide requirement.
E. No. 225/17 Surender Kumar Jain v. Sudesh Jain & Anr. Page 29 of 3038. Thus, in totality of the above discussions, the petitioner has failed to prove his bonafide requirement as well as nonavailability of alternative suitable accommodation with him for the alleged bonafide requirement, i.e. for residence of his sons and their family. Accordingly, the present eviction petition filed by the petitioner u/s 14 (1) (e) of the DRC Act, against the respondents, stands dismissed as rejected. No order as to costs. SUSHEEL Digitally signed by SUSHEEL BALA BALA DAGAR Date: 2018.05.02 DAGAR 04:15:28 -0400 Announced in open Court (Susheel Bala Dagar) on 01st Day of May, 2018 Pilot Court, CCJ cum ARC1(Central) (This judgment contains 30 pages.) Tis Hazari Courts, Delhi.
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