Delhi High Court
Diwan Singh vs Om Parkash And Others on 4 May, 1993
Equivalent citations: AIR1993DELHI341, AIR 1993 DELHI 341, (1993) 2 RENCJ 541, (1993) 2 RENTLR 257, (1993) 50 DLT 615, (1993) 2 RENCR 372
ORDER
1. Diwan Singh, the present revisionist has challenged the order of eviction passed against him under Section 14, read with Section 25B of the Delhi Rent Control Act (hereinafter called the Act.) The order of eviction has been assailed inter alia on the ground that respondents/ petitioners before the Addl. Rent Controller had no locus standi to file eviction petition because they were neither owner of the property in question nor their need bona fide. In the absence of bona fide need the eviction order could not have been passed.
2. Facts in brief are that the present petitioner was inducted as a tenant with regard to one room in property No. 2/49 Harijan Basti, Sarai Rohilla, Rohtak Road, Delhi, by one Smt. Naraini Devi, on a monthly rent of Rs. 30/- inclusive of electricity and water charges. Om Parkash, respondent No. 1 alleged himself to be the husband and respondents 2 and 3 daughters of the said Naraini Devi. They, therefore claimed themselves as landlord/ owner of the property and, therefore, claimed petition on the ground of bona fide requirements. This petition was contested by the petitioner/tenant on the ground that the said Om Parkash had been taking contradictory stand before various courts regarding Smt. Naraini Devi's existence. In a suit bearing No. 406/ 74, titled as Thakar Kanchan Singh v. Shri Om Prakash and others decided by Shri V.K. Jain, Sub Judge, Om Prakash took the plea that Smt. Naraini Devi was still alive. Whereas in a subsequent suit he alleged that Smt. Naraini Devi was presumed not to be dead. This statement was made by him on 15-1-1980. This shows he was not aware about Smt. Naraini Devi. This further proves that he was not her husband, and therefore, had no authority to file the eviction petition. However the Court below after recording the evidence passed the eviction order holding that Om Prakash, Saroj Rani and Usha Rani were the legal representatives of late Naraini Devi being her husband and daughters respectively. Therefore, being legal heirs stepped into the shoes of the owner. They had the right to institute the eviction petition. They had the locus standi. It was also held that since Om Prakash was living in one room, the said accommodation was not sufficient for him. Both his married daughters visit him, therefore, he required additional accommodation and hence allowed the petition. It is against this order of eviction that the petitioner has filed this revision petition. His challenge is primarily on the ground that there is no proof placed on record that Smt. Naraini Devi is dead or that Om Prakash is her husband and Saroj and Usha her daughters. Nor he had the authority to file the eviction petition. After recording evidence, eviction order was passed wherein it has been held that Om Prakash, Saroj Rani and Usha Rani were the husband and daughters respectively of late Naraini Devi. They, therefore, being the legal heirs of the owner of the property, had the right to institute the eviction petition and hence had the locus standi. It was also held that since Om Prakash was living in one room, it was not sufficient accommodation for him, his both the married daughters visit him, therefore, he required additional accommodation. Hence allowed the petition. It is against this order that the present petition has been filed challenging the order on the ground that there is no documentary evidence placed on record to prove that Naraini Devi is dead or that Om Prakash was her husband and Saroj and Usha their daughters. Om Prakash and others could not be the owner of the property.
3. Mr. K.R. Chawla, counsel for the petitioner, urged that respondents had no locus standi to file this eviction petition. In the petition it was not mentioned that they became owner by inheritance. In the absence of any pleading, no amount of evidence adduced by them could be looked into. He drew my attention to paras 3, 8 and 18(a) of the petition, where the petitioners namely Om Prakash, Saroj and Usha had simply alleged themselves to be the owner/landlord without specifying as to how they became so. Whereas admitted facts are that Om Prakash had been receiving the rent till 1979 in the name and on behalf of Smt. Naraini Devi. If Smt. Naraini Devi was dead, then why Om Prakash kept on receiving the rent in her name? No documentary evidence was placed on record to prove that Smt. Naraini Devi died in June, 1971. Om Prakash, appearing as AW1, admitted that Smt. Naraini Devi died in Hindu Rao Hospital, but did not produce any death certificate. Having failed to produce it cannot be presumed that Naraini Devi, the real owner is dead. Therefore, the question of succession does not arise. As regards Ex. AW-1/1, the judgment delivered by Shri V.K. Jain, Sub Judge, Delhi, that was not inter se the parties, and therefore, not relevant for the determination of the facts of this case. In the case before Mr. Jain no documentary evidence was produced to establish that Smt. Naraini Devi died. Rather AW-1/1 shows that one Nirmala Devi died in the Hindu Rao Hospital. Hence Ex. AW-1/1 does not prove that Naraini Devi died in hospital on 20-6-1971. In the absence of any proof of Naraini Devi's death the respondents cannot claim themselves to be the owner of the property in question. So far as the witnesses produced by the landlord are concerned they are not reliable. Guru Dutt, AW 4, is alleged to be the brother of Smt. Naraini Devi. He could not describe about the property in question, nor could tell when Smt. Naraini Devi died. Had he been brother he would have known about this property as well as about the death of Smt. Naraini Devi? The factum of Guru Dutt being the brother of Smt. Naraini Devi is doubtful, therefore, no reliance can be placed on his testimony. The evidence of AW 4, Guru Dutt, is also evasive. Even otherwise Om Prakash himself in his cross examination admitted that he had been receiving the rent in the name of Naraini Devi. If Naraini Devi was his wife and had died in 1971 then what prevented Om Prakash from receiving the rent in his own name after June, 1971. The act shows that respondents were not related to Naraini Devi but are taking advantage of her absence.
4. Mr. Chawla contended that it was not for the tenant to prove that Naraini Devi was dead or alive. The burden lay heavily on the respondents but they miserably failed to discharge trie burden. Nor Om Prakash by any cogent evidence could prove that he was her husband and being a husband became owner by inheritance. The judgment Ex. A W-1/1 is not a judgment in rem. It was a judgment relating to the facts of that case, applicable only to the parties of that case. Mr. Chawla urged that in the reply filed by the petitioner it was specifically denied that Naraini Devi was the wife of Om Prakash. The respondent did not take any step to prove the same. Even in the notice dated 30-3-1980. Ex. AW-1/4, it has nowhere been mentioned that Om Prakash became owner of the properly in question on account of inheritance after the death of Naraini Devi. From the reading of notice Ex. AW/1 /4, it is clear Om Prakash and his daughters proclaimed themselves to be owner as to right as if they purchased the property and not inherited it. Therefore, their evidence that they inherited the property after the death of Naraini Devi is in variance as well as beyond pleadings. Hence could not have been looked into by the Addl. Rent Controller. In para 18A of the petition, the respondents claimed themselves to be the owner without indicating the story of inheritance. The petitioner never attorney to the respondents as his landlord/owner. He had throughout been paying the rent to Naraini Devi. That position has been accepted by Om Prakash. Therefore, Om Prakash cannot claim himself to be the owner of the property. Therefore, the petition on account of his bona fide requirement is not maintainable. As regards the judgment delivered by Shri G.P. Thareja, Addl. Judge, Small Cause Courts, dated 20-7-1984, that does not establish the death of Naraini Devi nor proves that Om Prakash was her husband. Moreover, Mr. G.P, Thereja, Addl. Judge, Small Cause Court, was only dealing with the non-payment of rent. He was not called upon to decide whether Om Prakash was the husband of Smt. Naraini Devi, or that Naraini Devi had died. Hence the observations made by Mr. Thareja. Addl. Judge, Small Cause Court, will have no bearing on the disputed question of facts of this case. Mr. Chawla, therefore, contended that Om Prakash and his daughters cannot claim the premises for their requirement. Even otherwise Om Prakash has sufficient accommodation. He has one room on the ground floor and one "Kacha jhuggi" on the first floor. His both daughters, respondents are married. During the pendency of the petition he sold away one room and inducted a tenant by the name of Ramesh in another room. Therefore, his needs are neither bona fide nor genuine. He has sufficient accommodation with him.
5. Mrs. Dahiya contended that before dealing the merits of this petition she would like to raise legal objections about the maintainability of this Petition. According to her the scope and ambit of revisional jurisdiction of this Court is very limited. This Court can interfere with the judgment of the court below only when there is mistake of law. In the present case no mistake of law has been pointed out by the revisionist. He is only asking this court to reassess and reappraise the evidence and thus interfere with the finding of the fact, which is not permissible under the law.
6. Counsel for the respondents while refuting the arguments contended that there is voluminous evidentiary and documentary evidence placed on record which establishes beyond doubt that Om Prakash and his daughters inherited the property after the death of Smt. Naraini Devi, being the only surviving legal heirs. In this regard she placed reliance on Ex. AW-1/6, dated 5-2-1972 the letter written by the petitioner to the Superintendent of Police (Vigilance). This document had been admitted by the petitioner in court on 4-2-1988. A perusal of this letter, Mrs. Dahiya urged, clearly shows that the petitioner admitted that Naraini Devi died in June, 1971, leaving behind Om Prakash, as her husband. He also admitted vide Ex. AW-1 ,/6 that Om Prakash, had been living in the property in question since June, 1971. Vide Ex. AW-1 ,/6, there is an admission on the part of the petitioner that since June, 1971, no one has heard about Smt. Naraini Devi. This admission clearly proves that no one heard about Naraini Devi for more than seven years, therefore, under the law, the presumption can be drawn that she must have died. Besides this admission vide Ex. FW-1/6, Om Prakash also produced the sale deed Ex. AW-3/1, by which Naraini Devi purchased this house. Reading of Ex. AW-3/1 establishes beyond doubt that Om Prakash is the husband of Naraini Devi. Besides the testimony of A W-4, Guru Dutt, brother of Smt. Naraini Devi, there is an uncontroverter and unrebutted evidence of Seva Ram, the old servant of Smt. Naraini Devi, who appearing as AW-2, testified that Om Prakash was her husband and Saroj and Usha her daughters. That they were living together when he was working in the milk shop of Naraini Devi. He denied that Naraini Devi ws his niece. No material contradiction could be elicited in his cross-examination by which it could be inferred that he was deposing faisely. Mrs. Dahiya also drew my attention to the written statement filed by the petitioner. In the written statement, he admitted that in the month of June, 1971, Om Prakash informed the tenants, that Naraini Devi, his wife, died on 20-6-1971 and that he had become the owner of the premises. Besides the admission in the written statement, the petitioner appearing as RW 1, admitted that after the death of Naraini Devi, Om Prakash came to him and told that his wife Naraini Devi had died and that the rent should be given to him. The petitioner, thereafter, started paying rent to Om Prakash. This admission, on the part of the petitioner, clearly proves that Om Prakash was the husband of Naraini Devi and after her death became the owner of the property by inheritance. This admission further establishes that the petitioner knew about the death of Naraini Devi on 20-6-1971. The statement of the petitioner also establishes that Om Prakash occupied one room in the property in question. He had been collecting the rent from all the tenants, though rent receipts were issued in the name of his wife. The factum of the death of Smt. Naraini Devi was made known to all the tenants. Mrs. Dahiya, therefore, contended that it does not lie in the mouth of the petitioner now to urge that Om Prakash was not the husband of Naraini Devi or that she was not dead or this fact was not informed to him. The admission by the petitioner of these facts made in the written statement as well as by his statement before the Court belies the arguments of the counsel for petitioner now urged. In view of the facts being admitted, the Additional Rent Controller rightly came to the conclusion that Om Prakash, Usha and Saroj were the only legal heirs of Smt. Naraini Devi and after her death, became the owner landlord of the property in question and therefore, had the right to file the eviction petition.
7. So far as bona fide requirement is concerned, Om Prakash has got only one room and a 'kacha jhuggi' on the first floor. His two married daughters visit him frequently for which purpose he requires another room. The owner/landlord cannot be forced or dragged to live in a 'jhuggi'. When his family members visit him he has to offer the room to them, and therefore, forced to sleep himself in the 'Kacha Jhuggi' on the first floor. This cannot be called a suitable accommodation. Therefore, the trial court was justified in coming to the conclusion that the landlord/owner requires the premises for his bona fide requirement. So far as the allegation of letting out and sale of the premises after the institution of the petition are concerned, that is belied from the evidence placed on record. Ramesh Kumar was a tenant much before the institution of the petition and Sri Prakash Goel to whom the shop is sold, had in fact been a tenant in that very shop for the last couple of years. Since he was already occupying the shop, therefore, it was sold to him. The selling of shop would not mean that the landlord/owner does not require the residential premises for his bona fide requirement.
8. I have given my thoughtful consideration to the arguments advanced by both the counsel. It is a well settled principle of law that ownership of the property cannot be a question in revisional proceedings nor it is open to the tenant to raise the question of the validity of inheritance. He has no locus standi to do so. There is an overwhelming evidence on record from which it can be inferred that Om Prakash, Saroj and Usha inherited the property in question from Smt. Naraini Devi. Before discussing the evidence, reliance can also be placed on the admission made by the present petitioner in the written statement filed by him before the trial court. In paragraph 1 of the preliminary objection, he admitted that "Om Prakash came in the suit premises and asked the tenants of the said premises to pay him the monthly rent as Smt. Naraini Devi had authorized him to collect the rent from the tenants of the suit premises. He along with other tenants of the suit premises started paying rent to Om Prakash against the rent receipt, but in the month of June 1971, Om Prakash informed him and other tenants that Smt. Naraini Devi his wife had died on 20-6-71 and now he had become the owner of the suit premises, therefore, the rent should be paid to him. It is also an admitted fact on record that after June 1971 this very petitioner started paying rent to Om Prakash. Thus by this conduct he attorney to Om Prakash as his owner/landlord. Otherwise after having come to know that Smt. Naraini Devi, owner of the premises, had died on 20-6-71, why the petitioner paid the rent to Om Prakash. If he was doubtful about his locus standi he could have refused to pay the rent to stranger. The respondent is right when he contended that the petitioner knew fully well that he was the husband of Smt. Naraini Devi and hence started paying the rent to him after her death. It is also clear from the reading of the written statement that the petitioner knew that Naraini Devi died on 20-6-71. This fact find further support from the judgment of Shri G. P. Thareja, Addl. Judge, Small Cause Court, dated 20-7-84 which is inter se the parties, in which present petitioner was the defendant and the respondents Orn Prakash, Usha and Saroj were the plaintiffs. The issue before the court was whether the plaintiffs were entitled to the rent from the defendant. On this issue the Court relying on the letter Ex. AW-1 / 6 held that Om Prakash was the husband of Smt. Naraini Devi, and plaintiffs 2 &3 her daughters. They were held to be the owner of the property in question and entitled to receive rent. In view of this judicial pronouncement which was not challenged at any stage the parties are bound by that decision. The petitioner now cannot assail that decision nor can dispute that Om Prakash, Usha Rani and Saroj Rani are not the owner and landlord of the property in question. To my mind, it is not open to the petitioner to raise the question of inheritance ownership and relationship of owner/landlord-tenant.
9. So far as Mr. Chawla's contention that in the petition it was not pleaded that Om Prakash inherited the property after the death of his wife, to my mind, was not necessary because the factum of Naraini Devi's death and his being her husband had been conveyed by him to his tenants as far back as in June 1971 itself, which fact is admitted by the present petitioner in his written statement also. The petitioner also attorney to Om Prakash when he paid the rent after the death of Naraini Devi in June 1971. Hence in the pleadings when the respondents claimed themselves to be the owners of the property that was sufficient compliance of the requirement of the law. Respondents were not supposed to plead evidence. Respondents being the only legal heirs of Naraini Devi became joint owner of the property in question. Being owner/ landlord they had the right to file the eviction petition. Hence the objection of Mr. Chawla on these accounts has no force.
10. Now coming to the question of bona fide requirement, it is an admitted case of the parties that Om Prakash is living in the property in question in one room. The other two co-owners have since been married. He has a 'Jhuggi' on the first floor which according to Om Prakash is very small and a 'kacha sort of Jhuggi'. He is in fact occupying only one room, which fact is admitted by the petitioner. In the written statement filed before the trial court in reply to para 18-A, the petitioner admitted that Om Prakash was in occupation of one room in the suit premises. It was further alleged that, that room had been partitioned into three and let out to S/Shri Laxman, Suresh and Prem. They are living with Om Prakash and paying rent to him. It was also the case of the petitioner, that one room was sold and another room was let out during the pendency of the petition. Respondent Om Prakash appearing as AW-1, clarified that he neither sold any room nor parted with possession of any portion of his room nor let out any room in the property in question. He was in occupation of one room which no one has been sharing with him. On this part of his testimony he was not subjected to any cross-examination, not even a suggestion was put that he was sharing his room with cither Prem, Laxman or Suresh. From the plan Ex. AW-1 /3 it is clear that the room which is in his occupation has been shown as Mark-A. Mark-B room shown in Ex. AW-I / 3 is in occupation of a tenant by the name of Sayed-Ur-Rehman. His room is adjacent to the room of Om Prakash. Having put the question that Mark-B is in possession of Sayed-Ur-Rehman, again a question was put to Om Prakash that Mark-B is a part of his room and he let out the same to S/Shri Laxman, Suresh and Prem. These two suggestions arc contradictory to each other. This proves that petitioner is not sure of his defense and further-that Om Prakash has not sublet his room to S/Shri Prem, Suresh and Laxman. This rather proves that room Mark-B is in occupation of an old tenant Sayed-Ur-Rehman. Om Prakash denied that he was having another accommodation available with him either in this house or anywhere else. He produced his ration card, copy of which is Ex. AW-1/5, to prove that he was living in this very house, he further testified that the room in his occupation is of the size of 6 ft. x 6 ft., where except one cot nothing else can be accommodated. According to him the 'khokha' which had been put on the first floor was in occupation of Ramesh, a tenant. He denied that he has any house in Shastri Nagar. From such a lengthy cross-examination, nothing could be elicited from which it could be inferred that Om Prakash was not requiring the additional accommodation for his bona fide requirement. He, however, admitted that he sold one shop to Shri Siri Prakash Goel in 1982. Sh. Siri Prakash Goel was occupying this shop much before the same was sold to him. Counter foils of the receipt to show that Sh. Siri Prakash was a tenant much before the shop was sold to him have been proved as Ex. AW-I /X to AW-I /Z. So far as the jhuggi on the first floor is concerned he explained that it had a roof of 'tarpal' and the same was blown away. The factum of his being in occupation of one room and his daughters visiting him are corroborated by the testimony of Seva Ram, AW-2. That Siri Prakash Goel was in occupation of this premises as tenant since 1978 has been testified by Sh. Siri Prakash Goel himself when he appeared as AW-5, RW-1, Dewan Singh, the present petitioner, admitted that Ramesh Kumar was occupying the suit premises for the last five years and this statement he made in 1985-86. Ramesh Kumar occupied the room with a tin shed roof whereas according to Om Prakash, Ramesh Kumar was occupying this premises prior to the institution of the petition. So far as the sale of the room or shop is concerned that has been explained by Om Prakash as well as by the testimony of Siri Prakash Goel. From this overwhelming evidence it is clear that the owner is in occupation of only one room measuring 6 ft. x 6 ft. and he had 'kacha Jhuggi' on the first floor. Mr. Chawla fairly conceded that since both the daughters are married and being co-owners they have a right of accommodation whenever they visit Om Prakash, their father. Therefore, at least two proper rooms are required by Om Prakash. Since he has got only one room and other being only a Jhuggi, to my mind, the Addl. Rent Controller, Delhi, rightly came to the conclusion that the need of the owner/ landlord was bona fide.
11. I find no infirmity in the impugned order. The petition is accordingly dismissed.
12. Petition dismissed.