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[Cites 9, Cited by 0]

Delhi District Court

Mst. Salma Khatoon & Anr vs Sh. Zahimuddin & Ors on 7 October, 2011

               IN THE COURT OF SH BALWANT RAI BANSAL  
                ADDITIONAL RENT CONTROLLER (SOUTH),
                       SAKET COURTS,  NEW DELHI

Eviction Petition No.  E­16/10


Mst. Salma Khatoon & Anr.
                                                                 ........... Petitioners.
            Versus


Sh. Zahimuddin & Ors.
                                                                 ........... Respondents.


ORDER

1. Vide this order I shall dispose of an application u/o 12 rule 6 of CPC moved by the petitioners.

2. It is stated in the application that the respondents have admitted the case of the petitioner in their written statement particularly the ground of eviction u/s 14 (1) (h) of DRC Act. It is stated that the respondents have admitted the relationship of landlord and tenant between the parties and the respondents have not denied the ownership and landlordship of the petitioners in reply to notices dated 09.04.2009 and 04.02.2010. It is further stated that the respondents have also admitted the purpose of letting as residential. It is further averred that Eviction Petition No. 16/10 Page 1 of 17 the petitioners in para No. 18 (a) (ii) (a) to 18 (a) (ii) (e) of their petition have stated that the respondents after the commencement of Delhi Rent Control Act have acquired vacant possession or have been allotted number of residential property in Delhi and the respondents in the written statement have not denied that the said properties are either owned by them or possessed by them. It is further stated that the respondents have admitted that the property No. 4133, Katra Nizamul­ Mulk, Urdu Bazar, Jama Masjid, Delhi - 6 is the property on rent in the name of respondent no. 1. The respondents have also admitted in sub para (b) of Para 18 (a) (ii) that after the death of Nooruddin and Alimuddin, the property No. 16 and 4134 is owned by the legal heirs including the respondents. Similarly, in sub­para (c) of Para 18 (a) (ii), it is admitted that the property No. 27, Park End Colony, Vikas Marg, Delhi - 92 was in the name of late Sh. Alimuddin, father of respondent no. 1 & 3 and husband of respondent no. 2. It is further stated that the respondents have given evasive reply so far as properties No. 21 and 22, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6 and properties No. 26 ,27, 28 and 29, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6 are concerned. It is stated that the said properties are multi­storied constructed upto 4th & 6th floor respectively and a portion of the ground Eviction Petition No. 16/10 Page 2 of 17 floor is being used as Karim Hotel of which the respondent no. 1 is the Director. It is further stated that the respondents have also recently acquired residential property No. 30 & 31, Matia Mahal, Jama Masjid, Delhi - 6. It is further stated that in view of clear cut admission of the respondents having possession of the properties as mentioned in Para 18

(a) (ii) of the petition, eviction order is liable to be passed u/s 14 (1) (h) of DRC Act and there is no requirement of full­fledged trial on the said ground. Therefore, it has been prayed that in view of the admission made by the respondents in their written statement, an eviction order may be passed in favour of the petitioners and against the respondents in respect of the suit premises.

2. The respondents have filed the reply to the application contending that provisions of Order 12 Rule 6 CPC is not applicable in the present proceedings. It is stated that the contents of the written statement may be read as part of this reply which are not being repeated. It is further stated that the property in dispute is non­commercial and are being used for such purposes since the inception of tenancy. It has been denied that the respondents have recently acquired residential property No. 30 and 31, Matial Mahal, Jama Masjid Delhi as alleged or that there is clear cut admission of the respondents having possession of the said properties Eviction Petition No. 16/10 Page 3 of 17 for residential purposes. The respondents have prayed for dismissal of the application.

3. I have heard the Ld. Counsel of the parties and perused the record carefully.

4. A perusal of the record shows that the present petition has been filed by the petitioners u/s 14 (1) (d) & (h) of DRC Act against the respondents. U/s 14 (1) (d) of DRC Act, the case of the petitioner is that premises in dispute was let out for use as residence to Sh. Alimuddin and after his death, the respondents have become the tenants, but neither the respondents nor any member of their family have been residing in the premises in dispute for a period of six months immediately before the date of filing the present petition. U/s 14 (1) (h) of DRC Act, the case of the petitioner is that after the commencement of the Delhi Rent Control Act, the respondents have acquired vacant possession or have been alloted residential property No. 4133 & 4134, Katra Nizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6, House No. 16, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6, property No. 27, Park End Colony, Vikas Marg, Delhi - 92, House No. 21 and 22, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6 and property No. 26, 27, 28 and 29, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6. The case of Eviction Petition No. 16/10 Page 4 of 17 the petitioner is that the aforesaid properties are in possession of the respondents and they are also owner of these properties.

5. Now, by way of present application, the petitioners have contended that the respondents have admitted in their written statement the case of the petitioners that they are having possession of the residential properties as mentioned in petition in para 18 (a) (ii) (a) to (e) and, therefore, eviction order is liable to be passed u/s 14 (1) (h) of DRC Act.

6. First of all, it has to be seen as to whether there exist relationship of landlord and tenant between the parties. As per case of the petitioner, the premises in dispute was let out for use as residence to Sh. Alimuddin and after his death, the respondents have become the tenants in the suit premises by operation of law. In para 3 (a) of the petition, the petitioners have shown themselves to be landlord of the suit premises and para 3 (b) the respondents to be the tenants. There is no specific denial by the respondents to the contents of the para 3 (a) and 3

(b) of the petition in reply on merits in the written statement. The respondents have categorically stated in the written statement that late Sh. Aliuddin was a tenant initially under Smt. Sughra Begum at a monthly rent of Rs. 1700/­ p.m. and the property were taken on rent for Eviction Petition No. 16/10 Page 5 of 17 non­commercial purposes. It is further averred that Sh. Alimuddin is survived by his widow, a son and six daughters and all the legal heirs have inherited the tenancy rights in respect of the tenanted property who are willing to pay the monthly rent, but after the death of Sh. Alimuddin, nobody has come forward to receive the rent from the legal heirs of late Sh. Aliumddin. It is also averred by the respondents that earlier petitioners used to avoid receiving the rent from the legal heirs of late Sh. Alimuddin in order to find a ground of eviction.

7. In view of aforesaid averments made in the written statement, it is apparent that the respondents are not disputing the relationship of landlord and tenant between the parties. Admittedly, the suit premises was let out to Sh. Alimuddin and after his death, the respondents being his legal heirs have inherited the tenancy rights. It is also admitted by the respondents that they have been sending the rentals to the petitioners. Therefore, it stands proved that there exist relationship of landlord and tenant between the parties. There is also no dispute that the suit premises was let out for residential purposes as respondents have categorically stated in the written statement that suit premises was let out to Sh. Alimuddin for non­commercial purposes.

8. Though, the respondents have taken an objection in the written Eviction Petition No. 16/10 Page 6 of 17 statement that petition is bad for non­joinder of necessary parties as after the death of Sh. Alimuddin, all his legal heirs including his widow, a son and six daughters have inherited the tenancy rights, but the petitioners have failed to implead the other legal heirs as a party to the present petition for the malafide reasons.

9. In the petition, the petitioners have impleaded the son of late Sh. Alimuddin as respondent no. 1, widow of late Sh. Alimuddin as respondent no. 2 and one of the daughter of late Sh. Alimuddian as respondent no. 3. In the replication, it is stated by the petitioners that all other daughters of late Sh. Alimuddin are married and have been residing with their husband and children separately and they are not necessary party in the present potion.

10. As such, the petitioners have impleaded three legal heirs of late Sh. Alimuddin, the original tenant who are occupying the premises in question. It is a settled law that on death of original tenant, his legal heirs inherit the tenancy as joint tenants and occupation of one of the tenants is occupation of all the joint tenants and it is not necessary for landlord to implead all legal heirs of deceased tenant, whether they are living in property or not. It is sufficient for landlord to implead only those persons who are living in property as party. Reliance may be Eviction Petition No. 16/10 Page 7 of 17 placed upon Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors., 155 (2008) DLT 383. Hence, as the petitioners have impleaded the legal heirs of late Sh. Alimuddin who are occupying the tenanted premises, there is no merit in the contention of the respondents that present petition is bad for non­joinder of necessary party as the petitioners have not impleaded all the legal heirs of original tenant Sh. Alimuddin.

11. Now, in para No. 18 (a) (ii) (a) of the petition it is stated by the petitioners that the respondents have acquired vacant possession or have been allotted the residential property No. 4133 and 4134 Katra Mizamul­ Mulk, Urdu Bazar, Jama Masjid, Delhi - 6. It is also stated by the petitioners in para 18 (a) (ii) (b) that respondents have also acquired residential House No. 16, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6.

12. In the written statement, the respondents have denied the same and contended that Property No. 4133, Katra Mizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6 is the property on rent in the name of respondent no. 1 and, therefore, it cannot be said that the respondent had acquired or have been alloted the said property. It is also stated by the respondents that property bearing No. 4134 and property No. 16, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6. was owned by late Sh. Eviction Petition No. 16/10 Page 8 of 17 Noorudin, father of late Sh. Alimuddin and the said properties are still in the name of late Sh. Noorudin. It is further stated that property No. 4134, Katra Mizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6 is being used as kitchen of Karim Hotel.

13. In view of aforesaid averments made in the written statement, there is categorical admission on the part of the respondents that property bearing No. 4133, Katra Mizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6 is in the name of respondent no. 1 which has been taken on rent and, therefore, it amounts to acquisition of the said property by the respondent no. 1 as per the provisions of Section 14 (1)

(h) of DRC Act. It hardly matters that the said property has been taken on rent and the fact of the matter remains that the respondents have acquired the vacant possession of the property bearing No. 4133, Katra Mizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6. It has been held by the Hon'ble Delhi High Court in Baij Nath Vs. Bhagat Singh & Anr. 43 (1991) DLT 325 that, "From the plain reading of clause (h) of Section 14 (1) of the Act, it is clear that for getting an order under Section 14 (1) (h) of the Act, the landlord does not have to prove that the premises have been purchased or owned or built by the tenant. The words used are "acquired vacant possession of" and not owned or Eviction Petition No. 16/10 Page 9 of 17 purchased. A tenant may acquire possession of residential premises not only by purchase of a house or by building another house but also by taking it on lease or any other manner."

14. Similarly, it is stated by the respondents that late Sh. Noorudin, father of late Sh. Alimuddin was the owner of the property No. 4134, Katra Mizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6 and property No. 16, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6 and these properties are still in the name of late Sh. Noorudin. Admittedly, Sh. Noorudin has expired and his son Sh. Alimuddin has also expired. The respondents being the legal heirs of late Sh. Alimuddin have inherited the aforesaid two properties bearing No. 4134, Katra Mizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6 and 16, Gali Kababian, Matia Mahal, Jama Masjid, Delhi - 6. It is not the case of the respondents that there is any Will or any Testament left by deceased Sh. Noorudin or late Sh. Alimuddin in respect of the aforesaid properties or that the aforesaid properties have not come into their share. As such, it amounts to admission on the part of the respondents that they have inherited the aforesaid two properties after the death of Sh. Noorudin and Sh. Alimuddin.

15. So far the contention of the respondents that property No. 4134, Eviction Petition No. 16/10 Page 10 of 17 Katra Mizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6 is being used as kitchen of Karim Hotel is concerned, the fact of the matter remains that the said property came into the share of the respondents after the death of Sh. Noorudin and Sh. Alimuddin.

16. The petitioners have also stated in para 18 (a) (ii) (c) of the petition that the respondents have also acquired a residential premises bearing property No. 27, Park End, Vikas Marg, Delhi - 92 which is a three storeyed and construed in an area of 145 sq. yds. It is also stated that the respondents became the owner of the said property after the death of their father late Sh. Alimuddin and they some time reside in this property along with their family members.

17. In reply to this, the respondents in the written statement have denied that they are in possession of property No. 27, Park End, Vikas Marg, Delhi - 92 or that they reside in the said property or that they have become the owners of the said property after the death of their father late Sh. Alimuddin. Though, the respondents have admitted that the said property was in the name of late Sh. Alimuddin.

18. As such, the respondents have vaguely denied that they have not become the owner of the Property No. 27, Park End, Vikas Marg, Delhi

- 92. Admittedly, Sh. Alimuddin was the owner of the said property and Eviction Petition No. 16/10 Page 11 of 17 after the death of Sh. Alimuddin, the respondents being his legal heirs have inherited the said property. It is not the case of the respondents that there is any Will or Testament in respect of the said property or late Sh. Alimuddin has debarred the respondents from claiming ownership rights in respect of the said property or there is any other claim in respect of the said property No. 27, Park End, Vikas Marg, Delh - 92 of which Sh. Alimuddin was the owner. As such, after the death of Sh. Alimuddin, the respondents being his legal heirs have inherited the said property and it amounts to acquisition of the said property by the respondents.

19. It is also stated by the petitioner in para 18 (a) (ii) (d) of the petition that the residential House No. 21 and 22, Gali Kababian, Matia Mahal, Jama Masjid, Delhi is four storyed house and is in actual possession of the respondents. It is further stated by the petitioner in para 18 (a) (ii) (e) that property No. 26, 27, 28 and 29, Gali Kababian, Matia Mahal, Jama Masjid, Delhi are residential properties and are in possession of the respondents and they are also owner of these properties.

20. The respondents in the written statement have stated that the residential House No. 21 and 22, Gali Kababian, Matia Mahal, Jama Eviction Petition No. 16/10 Page 12 of 17 Masjid, Delhi is occupied by the Directors of Kareem Hotel. Again, the respondents have not disclosed who are the Directors of Kareem Hotel and have made only an evasive reply. In the absence of names of Directors of Kareem Hotel, it tantamounts to admission on the part of the respondents that they have acquired the property No. 21 and 22, Gali Kababian, Matia Mahal, Jama Masjid, Delhi.

21. So far the property No. 26, 27, 28 and 29, Gali Kababian, Matia Mahal, Jama Masjid, Delhi is concerned, it is stated by the respondents that late Sh. Alumuddin along with his three brothers are the owner of the said property and the same is in use of the brother of late Sh. Alumuddin and also a hotel by the name of Kareem Hotel is being run at the said property. Again, it is admitted by the respondents that late Sh. Alumuddin along with his three brothers are the owner of the property No. 26, 27, 28 and 29, Gali Kababian, Matia Mahal, Jama Masjid, Delhi. As such, after the death of Sh. Alimuddin, the said property came into the share of respondents being legal heirs of Sh. Alimuddin and they became the co­owners of the said property along with three brothers of Sh. Alumuddin and it amounts to acquisition of the said property by the respondents after the death of Sh. Alimuddin.

Eviction Petition No. 16/10 Page 13 of 17

22. Though, the respondents have contended in the written statement that without prejudice to their rights, the property mentioned in para 18

(a) (ii) of the petition, the said properties are not suitable for the residence of the legal heirs of late Sh. Alimuddin and cannot be said in any manner to be an alternative accommodation under the provision of 14(1) (h) of DRC Act. In this regard, the respondents have also referred the case law in Gujrat State Fertilizer Vs. S.M. Aggarwal 1999 (1) RCR (552) in which it was held that, "It is for a tenant to show that alternative accommodation acquired by him is not suitable and in case tenant is able to show then in such case Section 14 (1) (h) of DRC Act would not be attracted/ applicable."

23. However, it has been held by the Hon'ble Delhi High Court in Baij Nath Vs. Bhagat Singh & Anr. 43 (1991) DLT 325 that, "Once it is proved that the tenant has acquired another residence, that is enough. It is not relevant whether the acquired property is suitable substitute for the premises let for use as a residence." Similar view has been taken in T.N. Rai Vs. Rent Control Tribunal 67 (1997) DLT 308, Indian Cable Co. Ltd. Vs. Prem Chander Sharma 1989 RLR 495. In view of law laid by the Hon'ble High Court of Delhi in the aforesaid authority, suitability of the accommodation acquired by the tenant is not to be Eviction Petition No. 16/10 Page 14 of 17 considered.

24. The respondents in the written statement have also referred the judgment in Avinash Kaur Vs. Beli Ram 1970 RCJ (995) in which it was held that an act of acquisition of vacant possession or allotment of residence to a person before he became a tenant would not attract clause 14 (1) (h) of DRC Act, as it cannot be said in a such case that the tenant has acquired vacant possession or has been allotted a residence." They have also relied upon the judgment passed in Vardesh Chandra Vs. Premnath 1981 (1) RFJ (642) Delhi in which it was held that if the tenant have no present right of moving into the residential house inherited by him though vacant, it cannot be said that such a tenant has acquired vacant possession of the property.

25. There is no dispute so far the law laid down in the aforesaid authorities relied upon by the respondents is concerned that to attract the provisions u/s 14 (1) (h) of DRC Act, the acquisition of vacant possession or allotment of residence to a tenant has to be proved during the pendency of tenancy and if the tenant has acquired the vacant possession of a residence before commencement of tenancy, the provisions of 14 (1)(h) of DRC Act would not attract. Similarly, if the tenant has no right of moving into the residential house inherited by Eviction Petition No. 16/10 Page 15 of 17 him though vacant, it cannot be said that such a tenant has acquired vacant possession of the property.

26. But, in the present case, there is categorical admission on the part of the respondents that property No. 4133, Katra Nizamul­Mulk, Urdu Bazar, Jama Masjid, Delhi - 6 has been taken on rent by the respondent no. 1. It is not the case of the respondents that the said property was taken on rent before the commencement of tenancy. Similarly, the other properties as mentioned in para 18 (a) (ii) of the petition were either owned by Sh. Noorudin or by Sh. Alimuddin, predecessor­in­interest of the respondents and after the death of Sh. Noorudin and Sh. Alimuddin, the said properties have come into the share of respondents and they have got vested rights in the said properties being their legal heirs. Therefore, it cannot be said that the respondents have no right to move in the said properties as a matter of right. It is also not the case of the respondents that they have no vested right in the aforesaid properties.

27. In view of aforesaid discussions, there is categorical admission on the part of the respondents that they have acquired the residential properties as mentioned in para 18 (a) (ii) of the petition thereby admitting the case of the petitioners u/s 14 (1) (h) of DRC Act. Hence, application moved by the petitioners u/o 12 rule 6 CPC is allowed and an Eviction Petition No. 16/10 Page 16 of 17 eviction order is passed u/s 14 (1) (h) of DRC Act in favour of the petitioners and against the respondents in respect of the suit premises i.e. entire ground floor except one room and stairs of house bearing Municipal No. 231, Near Masjid Quresh, Basti Hazrat Nizamuddin, New Delhi - 110013, more specifically shown in red colour in site plan filed along with the petition. 

Announced in the open court                                (Balwant Rai Bansal)
on 7th October, 2011                                       ARC (South), New Delhi




Eviction Petition No. 16/10                                                      Page 17 of 17
 E­ 16/10



07.10.2011

                 Present:       Son of the petitioner no. 1.

                                None for the respondents.

Vide my separate order of even date dictated and announced in the open court, the application u/o 12 rule 6 CPC moved by the petitioners is allowed and an eviction order is passed u/s 14 (1) (h) of DRC Act in favour of the petitioners and against the respondents in respect of the suit premises.

As the present petition has also been filed on the ground of eviction u/s 14 (1) (d) of DRC Act, the case is now fixed for PE qua the ground of eviction u/s 14 (1) (d) of DRC Act for 19.12.2011. Evidence by way of affidavit be filed with advance copy to the respondents' counsel.

(Balwant Rai Bansal) CCJ/ARC/ACJ(South), New Delhi 07.10.2011 Eviction Petition No. 16/10 Page 18 of 17