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Kamla Tandon Vs. Brij Kishore Kapoor - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 505 of 1981
Judge
Reported inAIR1984Delhi62; 23(1983)DLT456; 1983RLR494
ActsDelhi Rent Control Act, 1958 - Sections 14(1) and 25B
AppellantKamla Tandon
RespondentBrij Kishore Kapoor
Advocates: Mukul Rohatagi and; Vijay Kishan, Advs
Cases ReferredGurbachan Singh v. Bajpal
Excerpt:
.....- evidence brought on record shows that father-in-law with his other sons residing in different house - father-in-law not brought for evidence - no bonafide ground for eviction. - - there are three daughters as well who are married and quite often come to the parents house and some accommodation is required for them too. (6) in the grounds of revision it is pointed out that the observation of the additional rent controller that all the family members of the petitioner'sfather-in-law have their votes enrolled from the house at dharampura is not correct and this is borne out from the copies of electoral rolls as well. (7) from the side of the respondent on the other hand, it has been pleaded that the petitioner had failed to examine her father-in-law in support of the..........clear now the separated brothers and parents are independently operating their kitchens from darya ganj property when it has only one kitchen there.all these assertions it is pleaded are belied by the circumstances brought onrecord. the assessment of evidence by the learned additional rent controller it is pleaded has been fair and reasonable, and this court in revisional jurisdiction should not interfere in the same in any manner.(8) there can be no quarrel with the proposition that where a person is living along with his family in the house of his father who has other children and their families as well, he can seek to set up his independent establishment in a house of his own, or that belonging to his spouse or dependent child. with the passage of time when family is grown and.....
Judgment:

D.R. Khanna, J.

(1) This Civil Revision is directed against an orderdated 3-3-1981, of Mr. Kuldip Singh, Iii Additional Rent Controller, whereby he dismissed the petition moved by Smt. Kamla Tandon under Section 14(1)(e) read with Section 25B of the Delhi Rent Control Act for ejectment of Brij Kishore Kapoor, tenant, from the ground floor of the demised premises in house No. 4227, Ansari Road, Darya Ganj, Delhi. The same is comprised of two rooms, one store, kitchen, latrine with compound and amiani. The first floor thereof consisting of two rooms, store, kitchen and bath is already in possession of the petitioner.

(2) The respondent is an old tenant there at the rent of Rs. 125.00 permonth. The petitioner purchased the property from the previous owner in1969. At present she is staying in house No. 4764, Darya Ganj, Delhi, which is said to belong to her father-in-law who has a big family consisting of as many as 20 members. She has, however, been according to her, asked by her father-in-law to shift to her own house. Her own family is comprised of herhusband, five daughters, two of whom are married, and one son. The husband is a Chartered Accountant of 27 year's standing, and the petitioner is also an income tax payee from the business known as 'Rangnath Publication' said to be carried on from the first floor of the property in dispute.

(3) The respondent's case before the Rent Controller was that the petitioner was not living with other members of her father-in-law's family,but was exclusively occupying the house No. 4764, Darya Ganj. The same,it was pleaded, has enough accommodation for the petitioner's requirements.As regards the father-in law, and his other members of the family, they are stated to be residing in a house in Dharampura. It was denied that any publication business was being run from the first floor of the property in dispute. Rather it has been stated that the same is lying vacant, with even the electric connection having been disconnected. It was got vacated in 1971.

(4) The learned Rent Controller after considering the evidence that had been led before him, came to the conclusion that the premises in dispute were actually let out to the respondent for residential purpose, and not for residence-cum-business as asserted by him. It was at the same time found that the petitioner's father-in-law and his family members were staying in the house at Dharampura, and that the petitioner and her family were entirely occupying the property No. 4764, Darya Ganj. The accommodation in her possession there, was found sufficient. As such the petition for ejectment was dismissed.

(5) The controversy raised in this revision concerns the finding that the petitioner has sufficient accommodation already in her possession forresidence. In this regard, reference has been made to three properties. One has been at Dharampura, which has since long been in possession of the petitioner's father-in-law. He and the members of his family are enrolled as voters from that property. They are also drawing their rations from there. No plan of this property has been filed, nor the father-in-lawexmined. It was, however, sought to be brought out by the petitioner thatthe same is a small property covering an area of about 70 sq. yds., and that it was obtained on lease by the grand father of the petitioner's husband, and that his uncles are also as such interested and entitled to its benefit. The property No. 4764, Darya Ganj where the petitioner is at present residing,has been shown in plan Ex.A.2 filed on record. The same shows that it has two rooms on the ground floor along with a gallary, latrine and some openspace. The first floor has one big room of 7 ft. x 16 ft, a small temporaryroom, a store, bath and kitchen. The second floor has three rooms and a small store. There is thus only one kitchen in the room. The petitioner contends that she is in occupation of only one room in this property which is quite insufficient for the requirements of the family and that now her father- in-law has required her to vacate the same and shift to her own house. The rest of this property is stated to be occupied by her father-in-law along with a large number of family members The father-in-law has thus hiswife, four other sons apart from the petitioner's husband, three of whom are married and have their families. One of them is a chartered accountant and having his office on a ground floor room. of the property. There are three daughters as well who are married and quite often come to the parents house and some accommodation is required for them too.

(6) In the grounds of revision it is pointed out that the observation of the Additional Rent Controller that all the family members of the petitioner'sfather-in-law have their votes enrolled from the house at Dharampura is not correct and this is borne out from the copies of electoral rolls as well. They were said to be not admitted by the Additional Rent Controller. The landed area of Dharampura house is stated to be 70 sq. yds only and the same can hardly accommodate the large family of father-in-law.

(7) From the side of the respondent on the other hand, it has been pleaded that the petitioner had failed to examine her father-in-law in support of the contention that he has required her to vacate his house, nor it shown that he is the exclusive owner thereof. No plan of the Dharampura house has besides been filed. Rather the testimony of the petitioner's brother-in-law who had been examined as her witness showed that the family members ofthe father-in-law are enrolled as voters from Dharampura house and hold their ration cards with the address of that house. This itself shows that they are residing there. Morever, it is pointed out that the petitioner's husband stated that he is separated from his father and brothers. If that is so it is not clear now the separated brothers and parents are independently operating their kitchens from Darya Ganj property when it has only one kitchen there.All these assertions it is pleaded are belied by the circumstances brought onrecord. The assessment of evidence by the learned Additional Rent Controller it is pleaded has been fair and reasonable, and this Court in revisional jurisdiction should not interfere in the same in any manner.

(8) There can be no quarrel with the proposition that where a person is living along with his family in the house of his father who has other children and their families as well, he can seek to set up his independent establishment in a house of his own, or that belonging to his spouse or dependent child. With the passage of time when family is grown and financial status of individual members improve, there is nothing unusual in sons desiring their separate independent establishments and acquiring their own identities. This is all the more so where each son has independent source of income, or different avocation in life. Large joint Hindu families perhaps in their jointness bring in community spirit and a sort of mini socialism within the family bonds where all pool their resources and then enjoy them jointly to the benefit of all. However, with concepts of fast changing and the smaller families seeking autonomy and individuality of their own,the old systems and traditions cannot continue to be enforced and required to be abided. Not unoften frictions and strafes over-take the mutuality and adjustment necessary for the success of larger joint Hindu families 23 (1983) D.L.T. 6, Sat Pal v. Nand Kishore, on which reliance has been placed by the respondent is distinguishable inasmuch as there a widower father who was living with his son's family wanted the eviction ofa tenant of another portion of the same property on some fanciful ground and when it had been found that some time earlier letting out of another portion had been effected.

(9) Now in the present case, if the house No. 4764, Darya Ganj,where the petitioner is residing, belongs to her father-in-law, and if he has asked her to vacate the same and shift to her own house, not much exception can be taken to her seeking eviction of the respondent from her house. the petitioner's husband is not the only son of her father-in-law. There are several other sons who are married and have families of their own. A father may not like to be indulgent to one son over others and allow him to occupy a much larger portion of his house than he should otherwise be entitled to considering the extent of the family. He may like the house to be proportionately distributed for purposes of occupation by different members ofthe larger family. In such an eventuality, one of the sons owning a house himself or through his spouse seeking to shift to that house, cannot be taken exception to. After all one. earns and buys or builds a house not to rot in a minimal space insufficient by any reasonable standards, or be a burden on others or continue resigning himself to the grace or courtesy of others eventhough they may be near relations. He has a right to make himself comfortable and acquire his own independence, dignity and status provided the demands are otherwise not manifestly extravagant or fanciful.

(10) At the same time, where a son has been allowed by his father to occupy his house without demur, and the same is sufficient for his requirements, and there is nothing to show that the father has required him to vacate or make room for other children, it cannot be said that the former son seeking eviction of a tenant from his own house, has no reasonably suitable residential accommodation with him. Unfortunately the present case, at least from what has been brought on record, tends to fall in this category.The father has not been examined to depose that he is the owner of propertyNo. 4764, Darya Ganj, and he wants the petitioner and her family to shift from there or at least make room for his other sons. His of course is alargefamily, and if all the members are taken into consideration that property itself may fall short of their requirements. The petitioner would in that case have justifiable ground to seek shifting to her own house. However, the manner in which the case has been conducted in the trial court, and the evidence that has been placed on record, show that the assessment of the circumstances by the learned Additional Rent Controller is not altogether unreasonable as to justify interference in this revision. He has come to the view from the evidence that the petitioner's father-in-law and the other members of the family are residing in Dharampura house where they were not only enrolled as voters, but also draw their rations. Perhaps there maybe some truth that the Dharampura house is a small one built over a plot of land measuring 70 sq. yds. The petitioner could have filed a plan of thatproperty, or at least the father-in-law could have deposed that his own brothers were also in occupation of part thereof. None of this has been done.The learned Additional Rent Controller has also taken note of the existence of only one kitchen in house No. 4764, Darya Ganj, and in case the father-in-law and his sons are all separate, and having their independent establishments, it is not shown how they are just managing on with one kitchen.Suffice it to say that in the assessment of the entirety of the circumstances,the learned Additional Rent Controller has not committed any gross illegality or material irregularity or jurisdictional error as held in the case KaaturiLal Nandraj v. Bakshi Ram, : 19(1981)DLT329 .

(11) During the course of the hearing of this revision it was felt that perhaps the petitioner has a sound case to seek eviction of the respondent if proper material had been placed on record. Two courses were then open.One was to remand the case back and permit the petitioner to examine herfather-in-law, and also produce a plan of the property at Dharampura, and further tender copies of the electoral rolls and ration cards. However, it is now well settled that power of remand cannot be exercised to enable a party to fill up the lacuna in evidence and place material which it could have well produced during the course of trial. This course, thereforee, could not resorted to. The other was that the petitioner could be allowed to withdraw THE petition with permission to move a fresh one. The respondent was agreeable to this. For reasons best known to the petitioner, she declined to proceed with this course. In the circumstances, I have no other course butto reject this revision.

(12) Before concluding, reference may be made to certain decisions relied upon by the petitioner. One of them has been Air 1953 Nagpur 146,Kewalchand Kastoorchand v Samirmal Jaini and another, in which it was observed that voter's list has practically no evidentiary value. These observations happened to be made where there appeared some printing error of the number of the house where the voter was residing. That has not been the position in the present case as the petitioner's brother-in-law admitted that they are enrolled as voters from the Dharampura house. : 20(1981)DLT176 M/s. J.K. Industries Ltd. v. Lt. Col. M.M. Lol, and 19 (1981) dlt 271, Gurbachan Singh v. Bajpal, next relied upon by the petitioner are to the effect that where a landlord is occupying a premises as a mere licensee or the courtesy of the owner thereof,and has no right of his own to stay there, he cannot be debarred from seeking eviction of the tenant from his own house. I am in respectful agreement with these decisions, and have already made observations on similar lineabove. However, in the present case, the petitioner's husband who has all through lived in the Daryaganj house, reared up his children, married his two daughters, cannot now suddenly turn round and say that his stay hasbeen just as a matter of courtesy of his father. He has been a Chartered Accountant having good income and still reconciled to his stay there finding that to be suitable for his requirements. The complexion, however, would have been different had the father been examined and stated that he wanted the petitioner and her husband to vacate or at least make room for the families of his other sons.

(13) As a result, I am constrained to reject this petition. No order as to costs.


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