Rajasthan High Court - Jaipur
Dullana Mal @ Dariyanamal vs Ram Prasad And Ors. on 25 October, 2002
Equivalent citations: 2003(1)WLC631, 2003(2)WLN577
Author: B.S. Chauhan
Bench: B.S. Chauhan
JUDGMENT B.S. Chauhan, J.
1. The second appeal has been filed against the judgment and decree dated 30.5.2002 passed by the First Appellate Court affirming the judgment and decree dated 19.2.1995 passed by the learned trial Court evicitng the appellant from the suit premises.
2. The facts and circumstances giving rise to this appeal are that plaintiff-respondents had filed a suit for eviction against the defendant-appellant on the ground of non-payment of monthly rent as well as reasonable and bonafide requirement which came into existence because of partition of the suit premises. The defendant-appellant contested the suit and on the basis of pleading, the learned trial Court framed six issues, including as to; whether the defendant-appellant was defaulter in making payment of the rent; whether he had made any unauthorised alteration in the suit property; whether the defendant-appellant was liable to be evicted on the ground that he had aquired his own house; whether the accommodation was required for personal use of the plaintiff-respondents; and whether partial eviction could serve the purpose. The evidence was led by the parties and after appreciating the same, the trial Court decreed the suit recording the finding of facts that the defendant-appellant was the defaulter; no material unauthorised alteration had been made by him in the suit premise; his wife had acquired a house and possession thereof had been acquired by him; the suit premises was reasonably and bonafide required for the personal use of the family of the plaintiff-respondents and partial eviction would not serve any purpose. The trial Court affirmed the findings of facts on all the issues. Hence this second appeal.
3. Mr. K.C. Samdaria, learned Counsel for the appellant, has submitted that the appellant's wife, at one stage, had acquired a residential accommodation and obtained its possession but subsequently disposed it off and, therefore, the appellant was not liable to be evicted; moreso, acquiring a property by his wife would not amount to acquisition by the appellant-tenant himself, therefore, he is saved from the clutches of law and the judgment and decree of the Courts below are liable to be set aside.
4. On the other hand, Mr. Ravi Bhansali, learned Counsel for the plaintiff-respondents, has opposed the sole contention of the learned counsel for the defendant-appellant.
5. I have considered the rival submissions made by the learned counsel for the parties.
6. The sole contention raised before this Court has been as to whether the property owned and possessed by the wife of the tenant would make him liable for eviction and whether in case even the wife is not in possession of the said property, as the same stood disposed of during pendency of the proceedings or even prior to that, he can be held liable to be evicted.
7. Section 13(1)(i) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short, "the Act") provides that a tenant shall be liable to be evicted from the suit premises if the "tenant has built, acquired, possessed or been allotted a suitable residence."
8. The issue involved herein is no more res-integra. it came up for consideration before the Hon'ble Supreme Court under the provisions of the Delhi Rent Control Act in B.R. Mehta v. Alma Devi and Ors., . However, the Hon'ble Supreme Court held that in such a case, the parties must make proper pleading and led evidence and observed that tenant loses his tenancy if the wife has acquired the hosue which is available to the husband, over which the husband has a domain which could be a substitute to the tenanted premises. But in that case, the Hon'ble Supreme Court made a distinction as the husband and wife had strained relationship. The Court held as under:
The premises in question, which the wife occupied, was undisputedly not the matrimonial home. It is no body's case. The husband would not, therefore, have the statutory or legal right against the Government accommodation to use and enjoy the premises allotted to the wife of the tenant because of her job. Looked at from any point of view, the tenant cannot be made to lose his tenancy because of wife's acquiring possession of a flat or allotted a flat because of her official duty, over which the husband has no right or domain to use or occupation.
However, the Hon'ble Supreme Court in Prem Chand v. Sher Singh, 1981 (2) DRJ 287 and the Delhi Hgh Court, in large nubmer of cases, including in Smt. Ravti Devi v. Kishan Lal, 1970 RCJ 417 and V.K. Malhotra and Ors. v. Ranjit Kaur, 1985 (1) RLJ 250, held that acquisition of premises by the wife would amount to acquisition by the husband and he would be liable to be evicted as a tenant under the provisions of the Delhi Rent Control Act.
9. The Punjab & Haryana High Court, interpreting the similar provision of law held that where the wife of the tenant constructed a house, it would amount to acquiring vacant possession by the tenant and he is liable to be evicted. If the tenant purchased the house in the name of his wife, he is also liable to eviction. (Vide Laxman Das Aggrawal v. A.K. Bahal, 1986 (S) RCR 609 and Piare Lal v. Smt. Telo Devi, 1986 (S) RCR 392. The Delhi High Court has reiterated the same view in N.K. Rastogi v. Kasori Lal, 1994 NOC 219, wherein, after considering a large number of judgments the Court held that every acquisition of residential accommodation by tenant's wife would not mean acquisition of residential accommodation by the tenant, but it will depend upon the facts of each case in order to decide whether alternate residence has become available to the tenant, over which he and his family have a domain. Where tenant's wife was to get possession of her flat and then handed over the possession to third party in sale, the fact remains that alternate accommodation becomes avilable to the wife including her husband and family and he would have full domain over it. Mere fact that later on the said residential accommodation is not available to tenant's wife in view of handing over its possession to a third party, would not have effect of wipping of the ground of eviction on the basis of alternate residence which becomes available to the landlrod under the Act.
10. In Smt. Mohini Badhwar v. Raghunandan Saran Ashok Saran, , the Hon'ble Supreme Court had taken the same view, observing that the circumstance that the tenant lost possession on the date when the eviction petition was filed, does not protect the tenant against the clutches of law which makes him liable for eviction on acquiring a suitable residential accommodation. Similar view has been reiterated by the Hon'ble Supreme Court in Gajanan Dattatraya v. Sherbanu Hosang Patel and Ors., , as it held therein that the tenant's liability to eviction arises when the factum of unlawful Sub-letting was proved. At the date of notice if it is proved that there was unlawful Sub-letting, the tenant was liable to be evicted. The logic behind it seems to be that in such a case, the tenant cannot be permitted to destroy the cause of action giving up the newly acquried residence either by himself or his wife. If he is permitted to do so then it will be very handy to defeat the right of the landlord conferred by the statute and once a protection is lost by the tenant, it is lost for ever and he becomes liable to be evicted irrespective of the fact that he had alienated the acquired building. (Vide Battoomal v. Rameshwar Nath, 1970 RCR 532 (Delhi) (DB).
11. In Rajeshwar Dayal v. Dhan Kumar, , this Court also rejected a similar contention, observing as under:
It has to be borne in mind that the act of alienation of the house was a voluntary by the tenant. Where the liability for eviction has arisen under Section 13 of the Act against the tenant having a house then the right to sue for eviction has accrued to the landlord and that right could be taken away only by an express provision of the statute or by necessary intentment. Section 13 does not lay down as to what would happen if the tenant has once built a suitable residence and has then disposed it of during pendency of the suit. Therefore, the section cannot be resorted to for divesting the right of seeking eviction which has accrued to the landlord.
The said judgment was approved and followed by this Court in Ved Prakash v. Anand Prakash, 1976 WLN (UC) 246. Similar view has been reiterated by this Court in Smt. Padmawati and Anr. v. Shyam Kumar Sharma, (1996) 1 WLC 209.
12. In view of the above, the law on the issues can be summarised that the accommodation acquired by the wife can be held to be that of the tenant unless it is established by adducing evidence that he could not have domain over the property so acquired by the wife or had no legal or statutory right to have domain over it or the relations betwen the husband and the wife are so strained that it was not possible for them to reside together her and once a liability for eviction is incurred by such acquisition of the property by the tenant or his wife, where the tenant, his wife or other family members can reside, alienation thereof would not divest the landlord on the ground of eviction of the tenant.
13. If the instant case is examined in the light of the aforesaid settled legal proposition, the plaintiff respondent led evidence that the wife had acquired the accommodation. The defendant-appellant did not lead any evidence that under peculiar facts and circumstances of the case it was not possible for him to have a domain over the property or the relations between the husband and wife were so strained that it was not possible for him to reside in that accommodation with his wife. On this count, there are concurrent findings of both the Courts below, which do not warrant any ground of interference as there is nothing on record to show that the said findings are perverse, being based on no evidence or contrary to the evidence on record. The alienation of the said property acquired by the wife would certainly not divest the right of the landlord to evict the tenant. Thus, in view of the above, I see no ground to interfere in second appeal.
14. The second appeal is accordingly dismissed.