Delhi District Court
CumCcj:Dwarka Courts:New Delhi vs . on 30 January, 2016
IN THE COURT OF SH. ANUJ AGARWAL:ACJCUMARC
CUMCCJ:DWARKA COURTS:NEW DELHI
Eviction Petition No.2/09/08
Sh. Chauthu Ram
(since deceased to be represented
through his legal heirs)
i) Smt. Lajwanti Devi
widow of Late Sh. Chauthu Ram.
ii) Sh. Dharam Veer
S/o Late Sh. Chauthu Ram
iii)Sh. Mohan Lal
S/o Late Sh. Chauthu Ram
iv)Ms. Krishna
D/o Late Sh. Chauthu Ram
All R/o A5B/64B, LIG Flat,
Janak Puri, New Delhi.
v) Sh Darshan Lal
S/o Late Sh. Chauthu Ram
R/o A5B/93A, LIG Flat,
Janak Puri, New Delhi.
vi) Smt. Usha
W/o Sh. R.K.Mehta
D/o Late Sh. Chauthu Ram
R/o 30/106, Vishwas Nagar,
Shahdara, Delhi110032
vii) Smt. Sheela
W/o Sh. M.M.Verma
1
EP2/09/08
Sh. Chauthu Ram
vs.
Smt. Chanda Devi & ors.
D/o Late Sh. Chauthu Ram
R/o 90/24, Malviya Nagar,
New Delhi110016.
.............. Petitioners
Versus
1. Smt. Chanda Devi
W/o Late Sh Ram Nath
R/o WZ1672/9, Nangal Raya
Delhi Cantt., New delhi.
2. Sh. Ved Prakash
S/o Late Sh Ram Nath
3. Sh. Chhatey Lal Verma
S/o Late Sh Ram Nath
Both R/o WZ349, Ground Floor,
Nangal Raya, Delhi Cantt.,
New Delhi.
4. Sh Mahabir Prashad
S/o Late Sh Ram Nath
R/o Village Sardar Wala Dandi,
Near Rampur, U.P.
5. Smt. Rajrani
W/o Sh Rajesh Kumar
D/o Late Sh Ram Nath
R/o 8/65, Manakshaw Marg,
Near Daula Kuan,
Delhi Cantt., Delhi.
Also at:
2
EP2/09/08
Sh. Chauthu Ram
vs.
Smt. Chanda Devi & ors.
RZ2/218, JBlock,
Gali no.8, West Sagarpur,
New Delhi110048.
.............. Respondents
Date of Institution: 13.10.2008
Date of judgment : 29.01.2016
JUDGMENT:
1. This judgment shall dispose of an application/petition for tenant's eviction under proviso (e) to Section 14 (1) read with Section 25B of Delhi Rent Control Act (henceforth referred to as the 'Act').
2. Briefly put, it is the case of petitioner that the tenanted premises in question i.e one room with tin roof for residential use at WZ1672/9, Nangal Raya, New Delhi as shown in the site plan, was let out to Sh. Ramnath, respondents' predecessorininterest at monthly rental of Rs. 44/. It is further stated that the petitioner bonafidely requires the tenanted premises for his family which consists of his wife, three sons namely Dharamveer, Mohanlal and Darshanlal and three daughters namely Usha, Sheela Devi and Krishna Devi. It is averred that one of his sons Sh. Darshan Lal resides separately.
3EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
2.1 As per petitioner, his other son namely Dharamveer is married and he and his family reside with the petitioner and third son Mohanlal (a Section Officer in Central Government) too resides with him. One of his daughters namely Krishna Devi (unmarried) is also stated to be residing with him. Petitioner avers that he needs one room for himself and his wife, one for unmarried son Mohanlal, one for unmarried daughter Ms. Krishna Devi and one for married son Dharamveer and his family. Petitioner further avers that he requires one more room for the friends and colleagues of his son Mohanlal who keep visiting the latter. As per petitioner, marriage proposals for his son Mohanlal and daughter Krishna Devi are not forthcoming on account of bad impression created by the small accommodation wherein they presently reside. Petitioner asserts that his married daughters also keep visiting him and thus, one room is required for their stay during said visits. According to him, as against the requirement of 6 rooms, he present has only two rooms in his property which is a Low Income Group (LIG) flat. Hence the present petition.
3. Record reveals that during course of present proceedings, petitioner passed away and his legal representatives (LRs) were impleaded in his place, vide Order 4 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
dated 03.07.2009.
4. Notice of the present petition was issued to the respondent. Respondent appeared before the Court and filed an application seeking leave to defend the present eviction petition, which was allowed vide order dt. 07.09.2009.
5. Pursuant thereto, respondent filed his written statement wherein she contested petitioner's claim qua ownership of the tenanted premises. she averred that the petition was barred by principal of res judicata as a similar petition on the ground of bonafide requirement, filed earlier by the petitioner, had been dismissed vide Order dated 05.10.2002 and that since then there has been no material change to give an occasion to file a fresh eviction petition on the ground of bonafide requirement. she goes on to aver that the tenanted premises has no amenities and as such the same shall not be suitable for petitioner's residential purpose. she submits that petitioner's legal heirs, being in government service, can very well be allotted government accommodation. As per respondents, petitioner/his LRs are in possession of another residential accommodation i.e, 197 Kucha Tihar, Delhi.
EVIDENCE ON RECORD 5 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
6. In support of the petition, two witnesses were examined. PW1 is Sh. Mohanlal, son of deceased petitioner and one of the LRs, who in his examinationinchief reiterated the averments made in the petition. During his cross examination, he admitted that he can be allotted Government accommodation. He, however deposed that he is not availing the government accommodation since there is a long waiting for the allotment of the same, secondly he would stand to lose money for availing the facility. He further deposed that he is not availing the facility as he wants to reside with his family. He further deposed that he can reside in the tenanted premises if the same are vacated. He admitted that Sh. Ram Nath was the original tenant of the tenanted premises.
7. PW 2 is Sh. Ram Chand who proved on record the documents pertaining to sale/purchase of property i.e. WZ197, situated in Lal Dora Abadi of Village Tihar from the petitioner on 31.03.1994 vide registered GPA, registered Will, agreement to sell, affidavit, receipt, indemnity bond etc., the said documents were exhibited as Ex. PW2/1 to Ex. PW2/7. In his cross examination, he admitted that no registered sale deed was executed in respect of said property.
8. PW 3 Sh. Krishan Kumar, LDC from Office of Sub RegistrarII, Janakpuri who proved the factum of GPA dated 6 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
31.03.1994 and Will dated 31.03.1994 being registered at their office.
Therefore, petitioner's evidence was closed.
9. Respondent no.1 examined herself as the only witness. She represented respondent no. 2 to 5 also by virtue of GPA Ex. RW1/1 and ExRW1/2 executed in her favour. During her examinationinchief, she deposed that she was residing with her late husband in the tenanted premises and after his demise, she was accepted as tenant by deceased landlord Late Sh Chauthu Ram. She further reiterated the averments made in the written statement.
9.1 During her cross examination, she admitted that petitioner Chauthu Ram has three son and three daughters besides his wife. She also admitted that Late Cahuthu Ram was their landlord as she used to give rent to him. She further admitted that Sh. Chauthu Ram was the owner of the tenanted premises and after his death, his widow and Children became the owner thereof. She further admitted that petitioner's legal representatives are residing in LIG Flat consisting of two rooms situated at Janakpuri, New Delhi. She further stated that she had no knowledge of any other property of petitioner except the property no.197, Kucha Tihar, Delhi. She denied 7 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
the suggestion that the said property has already been sold by Chauthu Ram on 31.03.1994.
Thereafter respondents' evidence was closed.
10. I have heard the arguments advanced by both the parties and perused the material available on record.
11. In order to obtain an eviction order under section 14 (1) (e) of the Delhi Rent Control Act, the petitioner must establish three ingredients :
i) The relationship of landlord and tenant.
ii) Bonafide requirement.
iii) Nonavailability of alternative suitable accommodation.
11.1. The relationship of landlord and tenant:The respondents have not disputed the relationship of landlord and tenant. Though, in the written statement, respondents made a vague averment about petitioner being not the owner of the tenanted premises; however, during her testimony, RW1 deposed in no unclear terms about the deceased petitioner being the landlord and her deceased husband i.e, her predecessorininterest being the tenant. After petitioner's 8 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
demise, his LRs, stepped into his shoes as landlord which fact has also been admitted by RW1. Thus, in view of this admitted position, the very first ingredient of landlordtenant relationship stands established.
11.2. Bonafide requirement: The petitioner stated that the premises are required for the bonafide need of his family as the accommodation which is available to them is insufficient. In her crossexamination of RW1, she admitted that the LIG Flat (wherein petitioner's family presently resides) is a two room flat only. There is also no dispute that deceased petitioner's family (consisting of his widow, an unmarried daughter, an unmarried son and a married son) are presently residing at the said LIG Flat. Therefore, it is quite evident that requirement of four rooms for petitioner's family members is natural and justified. The petitioner in his petition and PW1 in his testimony also deposed about the requirement of additional two rooms i.e, one room to be used as drawing room for the guest and colleagues of PW1 and other for the married daughters (who shall naturally visit the petitioner's home, it being their maternal home). Therefore, the requirement of six rooms on the part of petitioner's family has been duly justified in the present petition.
11.3. Ld. counsel for respondents vehemently argued that 9 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
PW1 Sh. Mohanlal (son of deceased petitioner) and Ms. Krishna Devi (daughter of petitioner) can be allotted Government accommodation therefore, requirement of two rooms for them, is not justified. On this score, I am not in agreement with Ld. counsel for respondent. It is well settled law that a tenant cannot dictate as to in what manner a landlord should live. The Court cannot also impose any residential standards of its own, upon any landlord. The urge of PW1 or his sister namely Krishna Devi to stay in their own premises rather than in a Government accommodation, is fully justified as to reside in one's own house has its own emotional value. Even otherwise, PW1 has categorically deposed that there is a long wait for allotment of Government accommodation and further, he shall be loosing the house rent allowance in case he avails Government accommodation. Consequently, in these circumstances, respondent's plea that petitioner's LRs can opt for government accommodation pales into insignificance.
11.4. Ld. counsel for respondents further argued vehemently that the tenanted premises are without basic amenities, therefore, same cannot serve any residential purpose for petitioner's family. I do not agree with this contention of respondents as any premises even if lacking in 10 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
basic amenities can be made suitable for residential purpose after necessary alteration/construction. PW1 in his cross examination has categorical deposed that he can stay in the tenanted premises if same are vacated. Therefore, lack of basic amenities in tenanted premises (which can always be rectified) does not hit the bonafide requirment of the same. Reliance in this regard can be had to the decision of K. Anthaipai Vs. C. Ahmmed, 1992 (2) RCR 270.
11.5. Therefore, in these circumstance, the requirement of petitioner's family for the tenanted premises for their residential use has proved to be bonafide as nothing contrary on record has been proved by the respondents.
12. Nonavailability of alternative suitable accommodation: In the petition, it was averred that no other alternative suitable accommodation is available. Respondents vehemently argued that petitioner's LRs are in possession of suitable alternative accommodation i.e, property bearing no. WZ197, situated at Kucha Tihar. However, in the petition, petitioner categorically averred that the said property has already been sold out in year 1994 to one Sh Ramchand. The factum of said sale has been corroborated by the buyer of the said property i.e, PW2 Sh Ramchand who stepped into the witness box and proved on record documents Ex. PW2/1 to 11 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
Ex. PW2/7 i.e, registered GPA, Will, agreement to sell and purchase, affidavit, receipt, indemnity bond etc. 12.1. Respondents' counsel vehemently urged that in view of the Apex Court judgment of Suraj Lamps & Industries P. Ltd. Vs. State of Haryana, AIR 2009 SC 3077, the said documents cannot confer any ownership to the alleged buyer i.e, PW2 Sh Ramchand and the alleged transaction is nothing but a sham transaction. I cannot but disagree with respondents' counsel as the issue whether PW2 has become the absolute owner of the premises WZ197 is not an issue before this Court. Nothing has been proved on record by respondents to show that the said transaction is a sham one. Further, even assuming that PW2 has not become the absolute and true owner of the said premises (in the absence of any registered sale deed), the fact remains that the petitioner has already parted with the possession and buyer's claim to ownership of the said property is sufficient to assume that the same is not available to the petitioner. Therefore, in absence of anything to the contrary, it cannot be assumed that petitioner's legal representatives are in possession of said property.
12.2. This court is conscious of the aforesaid verdict of the 12 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
Apex Court. However, subsequent thereto, Delhi High Court in Shri Ramesh Chand Vs. Shri Suresh Chand & Anr., 188 (2012) DLT 538 has held that where power of attorney sale documents are coupled with consideration, then stricto sensu complete ownership is not conferred, but the said documents do create rights to the extent provided under section 202 of Contract Act, 1872, section 53A of Transfer of Property Act, 1882 and ownership on account of devolution in terms of the Will after demise of the testator. Delhi High Court in this regard relied on an observation in Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana & Anr. 183 (2011) DLT 1 (SC) to the effect that power of attorney is not revocable or terminable at any time unless it is made irrevocable in a manner known to law. It may also be pointed out that under section 202, Contract Act, 1872 if a power of attorney is given for a consideration, then it cannot be terminated in the absence of an express contract to the prejudice of such interest.
13. The respondent has not been able to show any circumstance which casts any doubt on genuineness of requirement of the petitioner. Therefore, in view of the above discussion, the trinity of the principles i.e. existence of relationship of landlord and tenant, bonafide requirement and 13 EP2/09/08 Sh. Chauthu Ram vs. Smt. Chanda Devi & ors.
non availability of sufficient alternate accommodation stands fulfilled. The instant eviction petition is thus liable to be allowed. It is ordered accordingly.
14. CONCLUSION: The instant petition under clause (e) of the proviso to section 14 (1) of the Act filed by the petitioner stands allowed. An eviction order is hereby passed in favour of LRs of petitioner and against the respondents qua the tenanted premises i.e. one room with tin roof for residential use at WZ1672/9, Nangal Raya, New Delhi as shown in the site plan.
File be consigned to record room, after due compliance.
Announced in the open (Anuj Agarwal)
court on 29.01.16 ACJ/CC/ARC/DWK/ND
14
EP2/09/08
Sh. Chauthu Ram
vs.
Smt. Chanda Devi & ors.