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Savitri Devi Abdali and ors. Vs. Ram Bhaj Datta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 53 of 1975
Judge
Reported in12(1976)DLT334; 1976RLR138
ActsDelhi Rent Control Act, 1958 - Sections 2, 14, 14(6) and 56(1)
AppellantSavitri Devi Abdali and ors.
RespondentRam Bhaj Datta
Advocates: R.S. Rathore,; G. Goswami,; J.R. Goel and;
Cases ReferredV. N. Sarin v. Ajit Kumar Poplai
Excerpt:
.....was real owner possessing all rights of owner - under section 14 (1) respondent established he was owner of tenanted premises - premises had been let out for residential purposes - such premises required bona fide for residence and respondent had no other reasonably suitable residential accommodation - civil court not competent to determine dispute between landlord and tenant in relation to eviction - controller is proper authority - held, eviction of appellants on ground of bona fide personal necessity valid. - - the grounds mentioned in clauses (f) and (g) of the relevant proviso were given up and the ground mentioned in clause (a) failed on deposit of rent in accordance with law. aw3/3-as well as his statement made in the court, and so there was no dispute of title arising..........whether the respondent is a landlord of the appellants or not, and if so whether or not he is the owner landlord falls within the jurisdiction of the controller to decide, which he has properly exercised in the instant case. i put a question to the counsel for the appellants to test the validity of his argument, as to how the eviction would be decided if his submission were correct. the counsel replied that the respondent landlord must first have his rights as a owner determined in a civil court in a proceeding against his brother, and the appellants and then armed with that finding come to the controller to obtain eviction. the answer exposes the untenability of the argument. the respondent need not go to the civil court to have any rights established against his brother, since the.....
Judgment:

B.C. Mistra, J.

(1) This second appeal under section 39 of the Delhi Rent Control Act, 59 of 1958 (hereinafter referred to as 'the Act'), has been filed by the legal representatives of the deceased tenant and is directed against the order of the Rent Control Tribunal, dated 12th February, 1975, by which the appeal of the appellants has been dismissed and the order of the Additional Controller, dated 19th March, 1974, ordering eviction of the appellants on the ground of bona fide personal necessity mentioned in clause (e) of the proviso to subsection (1) of section 14 of the Act has been affirmed, with time till 31st March, 1975 to vacate. After its expiry, the appellants have, while there was no stop in operation, been dispossessed and they are out of possession for considerably long time and have probably acquired other residential accommodation.

(2) The material facts of the case lie in a narrow compass. The premises in dispute are G-44, Kalkaji, New Delhi and they were let out to the predecessor-in-interest of the appellants on a rent of Rs. 51.00 per month. It appears that the lease of the land on which the premises are situated was granted by the President of India for a period of 99 years commencing from 14th February, 1950. The lease deed was, however, executed in favor of Bhupinder Nath Datta, S/o of Ram Nath Datta. He is admittedly the brother of the respondent before me, namely, Ram Bhaj Datta, S/o Ram Nath Datta. The lease deed is Ex. AW3/1 dated 4th March, 1967. The superstructures erected on the said leasehold land were conveyed by the President absolutely on 4th March, 1967 by Ex. AW3/2 for a sum more than Rs. 8,000. The conveyance is also in the name of the respondent's brother.

(3) On 20th May, 1969, aforesaid Bhupinder Nath, brother of the respondent executed a deed of disclaimer. This deed recites that the aforesaid property (E-44 Kalkaji) was purchased by the (first party) respondent before me benami in the name of his brother and the entire consideration for the sale and also costs and expenses had been provided by the respondent herein and furher the respondent had been incurring expenditure in the maintenance and repairs, alterations and additions in the said property since I 4th February, 1950 and the original lease deed, receipt for the rent and other relevant documents were all in possession of the respondent. It is further recited that in reality the brother of the respondent did not have any interest, claim or title in the property and the same exclusively belonged to the first party, viz., the respondent herein. Consequently, the deed declared, renounced and released the claims, rights, title and interest of the brother of the respondent in favor of the respondent herein and established that the respondent was the real owner possessing all the rights of an owner. It was also declared that the property had not been encumbered, charged or affected in any manner. The document was presented to registration on 16th June, 1969 and was entered in the index on 22nd July, 1969. It is Ex. AW2/3.

(4) On 19th May, 1970 the respondent herein instituted a petition for eviction against the appellants herein on various grounds. The grounds mentioned in clauses (f) and (g) of the relevant proviso were given up and the ground mentioned in clause (a) failed on deposit of rent in accordance with law. The only ground that survived for decision was bona fide personal necessity mentioned in clause (e) of the proviso, to sub-s. (1) of s. 14 which as follows :

'(E)that the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable residential accommodation.'

The parties proceeded to trial and the respondent had to establish the ingredients of the aforesaid clause. The Additional Controller by his order held that the respondent had succeeded in proving all the ingredients of the ground, and was, thereforee, entitled to obtain an order for eviction. The appellants filed a first appeal before the Rent Control Tribunal and the only point that had been raised on their behalf before the tribunal was that the finding of the Additional Controller about the respondent landlord being the owner of the property was not sustainable and at all events the petition for eviction was barred by sub-section (6) of section 14 of the Act, The Tribunal after appraising the entire evidence on record came to the conclusion that it had been established that the respondent before me was the owner and the petition was not barred by section 14(6) of the Act. As such the appeal was dismissed with costs.

(5) Mr. Rathore, counsel appearing to support the second appeal, has assailed the decision of the Tribunal and has raised the following contentions, namely, (1) the Tribunal and the Additional Controller had no jurisdiction to determine whether the respondent was the real owner of the property ; (2) assuming that they had jurisdiction, the finding is not justified on the material on record ; and (3) if the finding be correct, the respondent had become owner only on the date of the deed of disclaimer and so could not maintain the petition for eviction before the expiry of five years mentioned in sub-section (6) of section 14 of the Act.

(6) I have heard Mr. Rathore, counsel for the appellant at considerable length and also the counsel for the respondent and have perused the record of the case. In my opinion, the contentions of the appellants' counsel are without any force. Clause (e) of the proviso to sub-section (1) of section 14 of the Act requires the landlord to establish that he is the owner of the tenanted premises and the same had been let out for residential purposes and were bona fide required by the landlord for residential purposes and were bona fide required by the landlord for residence of himself or any member of the family dependent on accomhim and that the landlord had no other reassonably suitable residential modation. As such the landlord has not only to establish that he is the landlord, but also he is the owner of the premises, since, unless and until the landlord be also an owner he would not be able to obtain eviction on the ground mentioned in clause (e).

(7) The word 'landlord' is defined by clause (e) of section 2 of the Act as meaning a person, who for the time being is receiving or is entitled to receive the rent of any premises, whether on his own account or on account of or on behalf or for the benefit of, any other person or as a trustee, guardian or receiver for any other person or who would so receive the rent or be entitled to receive the rent if the premises were let to a I tenant. The definition of the landlord is of the widest amplitude and would embrace within it a landlord who is also an owner of the property. Under section 50 of the Act the jurisdiction of the civil courts is barred. Subsection (1) provides that save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any matter which Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under the Act shall be granted by any civil court or other Authority. Subsection (4) of section 50 provides that nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises. The counsel for the appellants has submitted that the question whether the respondent was the real owner of the property was a question of title to the premises and as such the civil court alone had jurisdiction to decide it in view of sub-section (4) of section 50. The submission is, however, fallacious. Under sub-section (1) the Controller alone is empowered to decide the question of eviction of the appellant tenant from the premises in dispute and all disputes between the landlord and tenant relating to eviction (and fixation of standard rent) are directed by the provisions of law to be decided by the Controller and not by the civil court. The dispute raised in the instant case does not relate to any question of title between the respondent landlord on the one hand, and his brother the benamidar, or the appellant tenants on the other. Obviously, the appellants have not set up any title of their own to the property in dispute. Had they denied their character as tenant and set up a title in themselves, it would have been possible to argue that the jurisdiction of the Controller had been ousted and the dispute must be decided by the civil court. Again, the brother of the respondent was not raising any dispute with regard to the title of the respondent to the property in dispute. In fact, he had admitted the same, both by the document-deed of disclaimer Ex. AW3/3-as well as his statement made in the court, and so there was no dispute of title arising between them needing to be decided by court.

(8) The question raised between the parties before the Additional Controller was whether the respondent had satisfied the ingredients of clause (e) of the relevant proviso as against the appellant tenant. The appellants admitted and acknowledged themselves to be the tenant. The question raised was whether the respondent was the landlord and owner or whether the respondent's brother or anybody else was their landlord. This is a question that squarely falls within the jurisdiction of the Controller to decide. In Om Parkash Gupta v. Dr. Rattan Singh, it was held as follows :

'THEmost important question that arises for determination in this case is whether or not the Rent Control authorities had jurisdiction in the matter in controversy in this case. 0rdinarily,it is for the Civil Courts to determine whether and, if so, what jural relationship exists between the litigating parties. But the Act has been enacted to provide for the control of rents and evictions of tenants, avowedly for their benefit and protection. The Act postulates the relationship of landlord and tenant, which must be a pre-existing relationship. The Act is directed to control some of the terms and incidents of that relationship. Hence, there is no express provision in the Act empowering the Controller, or the Tribunal, to determine whether or not there is a relationship of landlord and tenant. In most cases such a question would not arise for determination by the authorities under the Act. A landlord must be very ill-advised to start proceedings under the Act, if there is no such relationship of landlord and tenant. If a person in possession of the premises is not a tenant, the owner of the premises would be entitled to institute a suit for ejectment in the Civil Courts, untrammelled by the provisions of the Act. It is only when he happens to be the tenant of premises in an urban area that the provisions of the Act are attracted. If a person moves a Controller for eviction of a person on the ground that he is a tenant who had, by his acts or comissions, made himself liable to be evicted on any one of the grounds for eviction, and if the tenant denies that the plaintiff is the landlord, the Controller has to decide the question whether there was a relationship of landlord and tenant. If the Controller decides that there is no such relationship the proceeding has to be terminated, without deciding the main question in controversy namely, the question of eviction. If on the other hand, the Controller comes to the opposite conclusion and holds that the person seeking eviction was the landlord and the person in possession was the tenant the proceedings have to go on.'

Again in a Division Bench authority of this court. Ram Parkash Kapur v. Smt. Bhagwanti Devi, it was held that the Controller had jurisdiction to decide the existence of relationship of landlord and tenant.

(9) The provisions of the statute also point to the same result, e.g. sub-section (4) of section 15 of the Act provides that if in the proceedings for eviction on the ground of non-payment of rent or other wise these should arise any dispute as to the person or persons to whom the rent is payable, the Controller may direct the tenant to make the deposit and then decide the dispute and make an order for payment of the rent deposited. Sub-section (5) also provides that if the dispute referred to in sub-section (4) has been raised by the tenant for reasons which are false and frivolous, the Controller may order the defense against eviction to be struckout. The provisions of section 27 of the Act also point to the fact that if the tenant finds a genuine difficulty with regard to the person to whom the rent is payable, he may move an application before the Controller and deposit the rent, which will be paid to the person the Controller determines to be entitled to receive. As a result, I find that there is no escape from the conclusion that the dispute between the parties as to whether the respondent is a landlord of the appellants or not, and if so whether or not he is the owner landlord falls within the jurisdiction of the Controller to decide, which he has properly exercised in the instant case. I put a question to the counsel for the appellants to test the validity of his argument, as to how the eviction would be decided if his submission were correct. The counsel replied that the respondent landlord must first have his rights as a owner determined in a civil court in a proceeding against his brother, and the appellants and then armed with that finding come to the Controller to obtain eviction. The answer exposes the untenability of the argument. The respondent need not go to the civil court to have any rights established against his brother, since the brother is not contesting his ownership and is not laying any claim or title to the property in dispute. The appellants cannot be imp leaded in such proceedings, since the appellants are not claiming any title in the property themselves. Again, the civil court is not competent to determine the dispute between the landlord and tenant in relation to eviction. It is, thereforee, idle to suggest that the respondent must first establish his case in the civil court and then approach the Rent Control authorities. The correct legal position, to my mind, is that the Controller under the Act is the appropriate authority and the correct forum to determine the dispute between the landlord and tenant in regard to (fixation of standard rent and) eviction of the tenant on the grounds mentioned in the statute, and if the Controller is the proper forum then he has the jurisdiction to determine whether the landlord has succeeded in establishing the ingredients of the specified grounds of eviction, including the fact that the landlord is also the owner of the property. Considered from any point of view, the submission of the counsel for the appellant is absolutely baseless and is rejected.

(10) This takes me to the consideration of the second contention raised by the appellants. The deed of disclaimer (Ex. AW3/3) has clearly recited the fact and has declared that the respondent before me is the real and true owner of the property, who has paid the consideration, carried out alterations and additions, and incurred expenditure, and is in possession of the documents of title and possession of the property. It also recites that the respondent's brother, benamidar does not have, nor does he claim, any right, title or interest in the said property whatsoever. This document is duly registered. Its legal effect is that in the documents relating to the ownership of the property in dispute, viz. the lease deed (Ex. AW3/1) and the conveyance deed (Ex. AW3/2), the name of the respondent will be deemed to he substituted as the legal owner and the respondent will be the owner with effect from the date the said documents were executed. This has also been recognised by the public authorities as the Land and Development Officer mutated the land in favor of the respondent and the Municipal Corporation has also mutated the name of the respondent in its public records. Over and above the aforesaid material there is plenty of oral evidence to support the case of the respondent.

(11) The raspondent's brother, Bhupinder Nath Datta, in whose name the documents of title originally stood, has been examined as AW9. He has not only proved the deed of disclaimer (Ex. AW3/3), but has also supported the case of the respondent that he is the real owner of the poperty and the witness did not have any right, title or interest in the same. This is an admission of fact adverse to the interest of the witness, if any, and so it has a very high probative value, and has, thereforee, been properly relied upon by both the authorities below. In addition to this witness, the respondent's mother, wife and brother have been examined as witnesses, who have supported the version of the respondent. The respondent has also been examined as a witness. Both the authorities below have believed them and I have no reason to differ from their appraisal of evidence or the findings of fact recorded by then.

(12) To put the matter beyond any shadow of doubt some documents have also been produced on the file. Most of them purport to have been written by the predecessor-in-interest of the appellants, which are addressed to the respondent and the contents of the documents indicate that the respondent was being treated as the landlord. The said documents are Ex. AW5/1, AW5/2, AW13/22, AW9/1, AW13/28 and AW13/29. The last two documents have been written by B.R. Abdali, either for himself or for himself as well as his mother, after the death of their predecessor. All these documents discussed by the Tribunal fully support the version of the respondent that he was being treated as the landlord of the appellants as well as their predecessor and the stand of the appellants that the respondent was not their landlord, but they were tenants of somebody else is wholly untenable. It is also significant to notice that the appellants have failed to file any proved documentary evidence to show that they were not tenants of the respondents, but were tenants of somebody else who was not a party to the proceedings. The findings of the Rent Control Tribunal affirming the finding of the Additional Controller on this point are fully borne out by the record of the case and do not suffer from any legal infirmity. They do not call for any interference and are affirmed. The contention of the counsel is rejected.

(13) The last contention of Mr. Rathore is equally devoid of any force. Sub-section (6) of section 14 of the Act reads as follows :- 'Where a landlord has acquired any premises by transfer, no application for recovery of possession of such premises shall lie under sub-section (1) on the ground specified in clause (e) of the proviso thereto, unless a period of five years has elapsed from the date of the acquisition.' This provision has been inserted with the object of preventing the landlord obtaining eviction on the ground of clause (e) by merely transferring the property to a landlord who may not, have other reasonably suitable accommodation and the purchaser of the property is, thereforee, required to wait for the expiry of the period of five years from the date of acquisition. Is the instant case, the respondents has not acquired any property within five years of the date of the institution of the petition. The lease deed (Ex.AW3/1) is effective from 14th February, 1950 and so is the conveyance deed (Ex. AW3/2). The deed of disclaimer (Ex AW3/3) also declares the respondent to be the true and real owner of the property with effect from the date of the original documents and not with effect from any subsequent date. The date of acquisition, if any, is, the date of the original acquisition. Moreover, the deed of disclaimer is not a document of transfer of property. It is merely declaratory of the pre-existing rights of the parties and the same does not amount to any transfer of property or acquisition of property by the beneficiary of the deed. As held in Naraklal v. Thagoo Lal, a release did not operate as a conveyance : it was at the most an admission by the party executing the release that he had no interest in the property. To the same effect are Dharam Chand Boid v. Mouli Shahu, and Jadu Nath Poddar v. Rup Lal Poddar'.

(14) The Supreme Court in V. N. Sarin v. Ajit Kumar Poplai, laid down the rule of law which can be referred to with advantage in the case in hand. In the said decision, Supreme Court observed that partition of the family did not transfer any rights of the parties, but it declared the separate enjoyment of the existing rights of joint enjoyment and so partition was not covered by expression 'transfer' and 'acquisition' occurring in sub-section (6) of section 14 of the Act. Consequently, the parties getting the property by partition could maintain the petition for eviction without waiting for the expiry of five years. What has been observed by the Supreme Court in respect of partition would apply with greater force to the case of release and disclaimer. The reason is that in a partition, it is possible to argue that there is atleast a change in the nature of the possession from joint to several, but in the case of release and disclaimer, there is absolutely no change of any kind what was already true and existing, but was ostensibly hidden has been brought out to light and so the release and disclaimer can not by any stretch of imagination be included within the expression 'transfer'. In this view of the matter, I find that the contention of the counsel that the respondent ought to have waited for a pariod of five years after the deed of disclaimer before he instituted the petition for eviction is without any force and is rejected.

(15) No other point has been urged before me. I find that there is no merit in the appeal and dismiss the same with costs.


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