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Hira Lal and ors. Vs. Banarasi Dass - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 291 of 1977
Judge
Reported in15(1979)DLT300; 1979RLR354
ActsDelhi Rent Control Act, 1958 - Sections 14(1)
AppellantHira Lal and ors.
RespondentBanarasi Dass
Excerpt:
.....of eviction - facts revealed a alone was tenant and had parted with possession in favor of his brothers - premises let for use as residence - neither a nor his family members were residing in demised premises - eviction sought for bona fide need of landlord - held, appeal against order of eviction not maintainable. - - there is, thereforee, no reason to differ from the concurrent finding of fact returned by the two courts below on this count as well. there can be no question of subletting or assignment because admittedly the requirements of these have not been satisfied and no attempt was made on behalf of the landlord to bring the case; the requirement of parting with legal possession do not appear to have been satisfied even on the admitted hypothesis and it is, thereforee,..........in favor of his two brothers and had acquired another premises where he has been residing with his family. hira lal pleaded that the premises had been held by all the three brothers as joint tenants since 1953. in view of this plea the landlord amended the petition and imp leaded the other two brothers. one of the brothers died during the pendency of the proceedings and his legal representatives were brought on record. the controller allowed the plea of eviction under section 14(l)(b) and 14(l)(d), holding that hira lal alone was the tenant and had parted with possession in favor of his brothers and that the premises having been let for use as aresidence. neither hira lal nor any member of his family had been residing there for a period of six months immediately before the date of the.....
Judgment:

H.L. Anand, J.

(1) This second appeal by two brothers and legal representatives of the 3rd claiming to be joint tenants of a residential premises assails the order of the Rent Control Tribunal upholding that of the Controller allowing the plea for eviction.

(2) The landlord respondent sought eviction of Hira Lal, appellant No. 1, on a number of grounds. Hira Lal resisted the petition contesting all the grounds, including the allegation that he had sublet, assigned or parted with possession of the demised premises in favor of his two brothers and had acquired another premises where he has been residing with his family. Hira Lal pleaded that the premises had been held by all the three brothers as Joint tenants since 1953. In view of this plea the landlord amended the petition and imp leaded the other two brothers. One of the brothers died during the pendency of the proceedings and his legal representatives were brought on record. The Controller allowed the plea of eviction under Section 14(l)(b) and 14(l)(D), holding that Hira Lal alone was the tenant and had parted with possession in favor of his brothers and that the premises having been let for use as aresidence. Neither Hira Lal nor any member of his family had been residing there for a period of six months immediately before the date of the filing of the petition. The other grounds of eviction, including the ground under Section 14(l)(e), based on the bonafide persona] need of the landlord, were repeled. 'The order of eviction was challenged in appeal and the landlord filed cross-objections, in so far as the ground regarding bona fide personal need was negatived by the Controller. The tribunal not only upheld the order of eviction of; the. two grounds, on which it was based by the Controller, but also accepted the cross-obJection of the landlord and Justified eviction on the additional ground of bona fide personal need of the landlord.

(3) A number of contentions were urged on behalf of the appellants to obtain a reversal of the order of eviction.

(4) Whether all the brothers were joint tenants or the tenancy was exclusively in the name of Hira Lal, was the first contention urged on behalf of the appellant. According to the appellants the brothers were carrying on business in partnership in the name of M/s. Ram Chander Jora Lal, Ram Chander being the name of the father, and the plea of joint tenancy was sought to be reinforced with reference to two receipts, Exts. R-l and R-2 of June 14, 1953, July 15, 1953 respectively, which show payment of rent by the firm. In the absence of any other material both the Courts below held that these receipts were insufficieat to justify a finding of joint tenancy and I see no reason to differ from this cornelusion, which is fully reinforced by considerable other material. In the first. instance, all subsequent receipts such as Exhibits A-4, A-5. A-6 and A-3 of the period between 1957 to 1960 are inconsistent with the aforesaid two receipts and show payment of rent by Hira Lal. Secondly, in a suit filed by the landlord in 1954 against Hira Lal a plea had been raised that the firm was the tenant but the plea had been negatived. That decision remains unchallenged precluding at least Hira Lal from raising that plea in the present proceedings. In any event, in view of all this material there is no ground to interfere in the conclusion arrived at by the Courts below in the present proceedings. Lastly, according to R.W. 5, Tara Chand Hira Lal was not shown as a partner of the firm at all even though Hira Lal made that claim as R.W. 4.

(5) Whether the tenancy had been duly determined or not, is the next. question that is raised and here again, on the material on record, it is not possible to disturb the concurrent finding of the Courts below on this count Exhibit A-16 is a copy of the notice terminating the tenancy and was admittedly sent to the tenant at four different addresses by registered A.D. Post. The postal receipts in respect of the dispatch are Exhibits A-17 to A-20. One of these was addressed to the tenant at the address of the demised premises. The notices were sent at different addresses presumably because according to the landlord the tenant had either acquired a premises or shifted to another place. Notice was also sent at the disputed address under certificate of posting. While the covers sent by certificate of posting were not returned, the registered covery, which was sent at the address of the premises in dispute, was turn with the postal endorsement that the same had been 'refused' and was, thereforee, being returned to the sender. While it may be open to the tenant to take whatever advantage he could of the fact that he had been found by the postman at the demised premises, there can be little doubt that in view of the postal endorsement that the tenant had refused to accept the notice, the notice would be deemed to have been duly served. One of the notices was affixed at the premises in dispute in the presence of an advocate, and according to the evidence an inmate of the house had said that Hira Lal was not living there. Exhibit A-2/1 is the report with regard to affixation by the advocate. There is, thereforee, no reason to differ from the concurrent finding of fact returned by the two courts below on this count as well.

(6) Whether the tenant could be said to have sublet, assigned or otherwise parted with the possession of whole or any part of the premises, is the next question that falls to be considered. It is a common case of the parties that the two .brothers of Hira Lal and members of their family had, during the material time, been residing in the premises in dispute although there was considerable controversy as to whether Hira Lal himself has been living in the premises during the last few years or had taken up residence elsewhere. It has also been throughout the case of Hira Lal, tenant, himself that the tenancy was a joint tenancy either in the name of the firm or in the name of all the brothers. On the basis of the material available on record both the courts below have returned a concurrent finding of fact, and it was not seriously disputed, that during the last 4 or 5 years Hira Lal the tenant, has not been residing in the demised premises but had taken up residence elsewhere. The only question that is raised on behalf of the tenant is whether, even on the admitted hypothesis that the tenant has not been living there himself during the last 4 or 5 years, and had put his brothers and/or their dependent in the premises, it could be said that he had either sublet, assigned or parted with the passession of the premises. There can be no question of subletting or assignment because admittedly the requirements of these have not been satisfied and no attempt was made on behalf of the landlord to bring the case; on the admitted hypothesis, within two terms. The only question that, thereforee, survives for consideration, so far as the ground under section 14(l)(b) is concerned is. whether in the circumstances it could be said that the tenant had 'parted with the possession' of the whole or part of the premises. The Courts below have returned the finding that there is parting with possession partly on account of the fact that the tenant has not been residing there during the last many years and partly on account of the pela of the tenant himself that he was not the exclusive tenant but that the premises was held under a joint tenancy in favor of the brothers. Parting with legal possession, it was urged was implicit in such a contention, even if mere withdrawal of the tenant from the premises may not be sufficient, having relevance to physical possession as distinct from legal possession. This conclusion ofthe Courts below appears to me to suffer from a serious infirmity. If parting with possession is not a physical concept but involves a parting with legal possession, a proposition which was not contested on behalf of the landlord, it is difficult to justify the further conclusion that there was parting with legal possession on the plea that it was a case of joint tenancy. Such a reasoning ignores the fact that all the brothers and legal representatives of the deceased, brother were parties to the proceedings and whatever may have been the plea raised by the tenant they are all bound by the conclusion of the Court with regard to that plea that the other brothers had no right of tenancy as it was a case of exclusive tenancy in favor of HiraLal. The tenant and the other occupants in whose favor there is alleged to have been parting with possession are real brothers, or members of the family of a brother, who has since died. All the brothers were carrying on business in partnership at the material time even though it is alleged that one of them was not shown as a partner. There is, thereforee, nothing on this material which makes out the case that the tenant has surrendered legal possession to his brothers or the members of their family merely by the act of physical withdrawal from the premises. The requirement of parting with legal possession do not appear to have been satisfied even on the admitted hypothesis and it is, thereforee, not possible to justify the conclusion of the Courts below in this aspect of the case. It was not disputed that even though Hira Lal had withdrawn from the physical possession of the premises the rent receipts were nevertheless throughout been in his favor and according to landlord himself he alone continued to be the exclusive tenant. This circumstance would be further destructive of any possible hypothesis of parting with-legal possession. The tenant was, thereforee, not liable to be evicted on the ground under Section 14(l)(b) of the Act.

(7) What then is the position, on the material on record, of the liability of the tenant for eviction under Section 14(l)(d) of the Act. Both the Courts have returned a concurrent finding of fact that neither Hira Lal nor his wife or children have been residing in the demised premises for more than the requisite period of six months. On behalf of the tenant it was also not seriously disputed that during the last many years he had taken up residence elsewhere apparently because of shortage of accomodation along with his wife and children and that his son had shifted to yet another premises. If the expression 'members of his family' in clause (d) of proviso to sub-section (1) of Section 14 is to be given a restricted meaning the brothers of Hira Lal or the legal representatives of one of the brothers, who has since died, could not be said to be the members of his family. If the expression was to be construed widely the brothers, who are married and have their own children, may nevertheless continue to be the members of a larger family, particularly where they have, over the years, been living and messing together, and were carrying on business in partnership. Even otherwise whether a brother, married or not, would continue to be the member of the family of his brother, would depend on a variety of factors such as common residence, commonsality in living and messing, joint business, as also whether one or both of their parents are alive and living with him. The answer to the question, thereforee, if a person was a member of the family of another, unless he is such a member on the narrow construction of the expression, would, thereforee, depend on the facts and circumstances of each case and it is not possible to lay down any hard and fast-rule in that behalf. Having regard, however, to the fact that Hira Lal and his brothers were carrying on business in partnership, had, thereforee, a common source of income and for many years admittedly lived together in the premises until Hira Lal moved out, apparently on account of shortage of accommodation, it could not be said that the brothers were not members of his same family and when Hira Lal moved out none of the members of his family were residing in the demise premises. The conclusion arrived at by the Courts below may be justified on the narrow construction of the.expression 'members of his family', but on the facts and circumstances of this-case there would be no justification for such a narrow construction. It must thereforee, he held that the ground envisaged by Section 14(l)(d) was not available, to the landlord to evict the tenant and the eviction on this ground must fail.

(8) That leaves for consideration the question as to the bonafide personal need of the landlord. The Controller had turned down the plea for eviction on this ground for the reason that the landlord was in occupation of both the floors of the adjoining house comprising six rooms, a store, two kitchens, bathroom and open space and balcony, which was considered by the Controller to be sufficient for a family of 8 members by any standard and 'for any type of living'. Before the Tribunal the plea of the landlord, however, prevailed and eviction was allowed on this ground as well because, according to the Tribunal, the landlords had two living rooms on the first floor, two living rooms on the second floor, a store, pantry, kitchen, bath on the first floor and a store and kitchen and terrace on the second floor, which was considered insufficient by the Tribunal for a family of the landlord consisting of himself, his wife, his aged mother and four children, including a son who had since been married and had two children of his own, and a married daughter. It thus appears that the son got married subsequent to the order of the Controller. The Tribunal also pointed out that in determining the suitability of the existing accommodation, the Controller and counted 'the small store and pantry also in living rooms' when it returned the finding that there were six rooms. According to the Tribunal the reference to the plan, Ex. R9, shows that the store and pantry are of sizes 11.2'x7'll' and 8.6'x8.8' and, thereforee, the real accommodation available with the landlord was only four living rooms, which was insufficient for a family consisting of two couples, in addition to two children of the married son, and the possibility of the married daughter, coming to live with the parents off and on. I have heard the learned counsel for the parties at considerable length on the question as to the suitability of the existing accommodation not only because the judgment of the Tribunal was one of variance on this part of this case but also because the Tribunal noticed that counsel for the parties did not appear before him on account of strike by the lawyers, although I understand from the parties that some kind of written arguments were filed in lieu of oral submissions. Whether a particular accommodation is suitable for the requirement of the landlord or not and whether not withstanding such accommodation the landlord could be justified in seeking eviction involves consideration of various factors, such as the extent of the family, the extent of accommodation, the states of the family, the style of living and standard of living to which the family may- be used, as indeed, the economic implication of seeking further accommodation. I have always held the view that how much accommodation would be required for afamily essentially involved an objective test and was not determined by the mere desire or whim of the landlord nor would the Court be bound by the landlord's ipse dixit in such a matter but that the Court would not ordinarily weight the need in a fine scale without making an allowance for the reasonable desire of a landlord to live comfortably even though within the constraints imposed by law. The premises in dispute are located in a highly congested residential area of the city and there is no material on record which may justify a conclusion that the landlord was used to a high standard of living, having regard to his status, income, eduction or otherwise. The concept of dwelling is not static but varies with varying circumstances, the strata of socity, the financial position of the family, their educational standard as indeed the area in which they live while it is possible, on the existing material, to justify the conclusion of the Controller that all the members of the family of the landlord could be huddled in what may be described as 8 rooms, if one were to ignore that two of these were mere store and pantry, it is difficult to dislodge the conclusion of the Tribunal, particularly having regard to the fact that one of the sons has since got married, and, his two children of his own the other two sons are 20 and 22 years of age and are, thereforee fact attaining their marriageable ages. There is the elderly mother of the landlord, whose claim to a separate room could not Justifiably be ignored and there is the prospect of a married daughter coming to live with the parents off and on. In view, thereforee, of the fact that the conclusion arrived at by Tribunal is a possible view to take of the totality of the circumstances, I would not be justified in interfering in this conclusion in the present proceedings and would uphold the conclusion of the Tribunal that the tenant would be liable to be evicted under section 14(l)(e) of the Act.

(9) In the result the Appeal fails and is hereby dismissed. The tenant would vacate the premises within three months. In the peculiar circumstances there would, however, be no costs.


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