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Ramesh Chand Sharma Vs. R.S. Aggarwal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 453 of 1980
Judge
Reported in22(1982)DLT356
ActsDelhi Rent Control Act, 1958 - Sections 14(1); Evidence Act, 1872 - Sections 68
AppellantRamesh Chand Sharma
RespondentR.S. Aggarwal
Advocates: Maehswar Dayal,; A.C. Mittal,; S.L. Bhatia and;
Cases ReferredJadeja Natwarsinghji vs. Thacker Arjan Mundarji
Excerpt:
.....to decide an eviction application merely on the ground that a title suit relating to the suit property was also pending before the civil court. the provisions of section 10 of the code of civil procedure are not applicable and, thereforee, the eviction proceedings cannot be stayed on account of the pendency of the title suit in the civil court.; 2. the controller and tribunal have recorded a finding of fact that the requirement of the landlord is bonafide. such a finding cannot be interfered with unless it is based on no evidence or is perverse or mistake of law is committed in reaching it. questions of sufficiency or adequacy of evidence not to be agitated in second appeal.; 3. there is no provision of law under which release deed is required to be attested by witnesses. the..........filed by smt. ganga devi against present respodent and others she was claiming ownership of the suit property and the respondent was claiming the property on the basis of a deeded of relinquishment allegedly executed by j. n. gupta, deceased husband of smt. ganga devi in favor of respondent's wife, that the controversy as to who was the owner of the suit property was being vigorously contested in the civil court. in replication the respondent pleaded that he was the owner-landlord of the suit property, that j. n. gupta, husband of smt. ganga devi executed a relinquishment deed. the controller and the tribunal held that the respondent was ownerlandlord, that j. n. gupta executed a release deed in favor of respondent's wife, that the agreed rent was rs. 100 per month and considering the.....
Judgment:

Sultan Singh, J.

(1) This second appeal by the tenant under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') is directed against the judgment and order dated 30th October, 1980 of the Rent Control Tribunal confirming the order dated 11th March, 1980 of the Rent Controller passing an order of eviction against the appellant under Section 14(l)(e) of the Act and holding further that if he deposits all arrea's of rent at Rs. 100 per month with effect from 1st January, 1976 within one month from the date of the order the appellant wotild be deemed to have availed the benefit under Section 14(2) of the Act.

(2) Briefly the facts are R. S. Aggarwal, respondent on 19th January, 1979 filed an application for eviction of the appellant on the ground of non-payment of rent for the period from 1st June, 1970 at Rs. 100 per month in spite of notice of demand. The other ground of eviction was that the premises were let for residential purposes, the same were required by him for occupation for himself and for members of his family dependent on him, that he was the owner of the premises and that he had no other reasonably suitable residential accommodation. He pleaded that he was a Divisional Accounts Officer and was occupying Government allotted quarter No. 1085 Sector Viii R. K. Puram, New Delhi consisting of three bed rooms, one drawing-cum-dining hall, two verandahs, one Kitchen bath room. Latrine, toilet etc. and that he had retired and the Government had asked him to vacate the quarter. The appellant in the written statement pleaded that the respondent was not the owner-landlord and the property was ownd by Smt. Ganga Devi widow of J. N. Gupta. He also pleaded that in a suit filed by Smt. Ganga Devi against present respodent and others she was claiming ownership of the suit property and the respondent was claiming the property on the basis of a Deeded of Relinquishment allegedly executed by J. N. Gupta, deceased husband of Smt. Ganga Devi in favor of respondent's wife, that the controversy as to who was the owner of the suit property was being vigorously contested in the civil court. In replication the respondent pleaded that he was the owner-landlord of the suit property, that J. N. Gupta, husband of Smt. Ganga Devi executed a Relinquishment deed. The Controller and the Tribunal held that the respondent was ownerlandlord, that J. N. Gupta executed a Release deed in favor of respondent's wife, that the agreed rent was Rs. 100 per month and considering the family of the respondent and the fact of his retirement and occupation of the Government accommodation by him it was held that the need of the respondent was bona fide. Hence this second appeal.

(3) Learned counsel for the appellant-tenant submits that a dispute as to who was the owner of the suit property between the respondent and Smt. Ganga Devi widow of J. N. Gupta ostensible owner has been pending in the civil court and thereforee the Controller and the Tribunal ought not to have passed the order of eviction but should have awaited the decision of the Civil court. Ex. A. W. 11 is the Release Deed dated 12th May, 1969 executed by Jagdish Narain Gupta (J. N. Gupta) son of Shri Ram Pershad in favor of Smt. Santosh Kumari wife of the respondent. This document states that the plot of land of the suit property at 110A, Krishan Nagar, Safdarjang Enclave, New Delhi was purchased by the respondent's wite in his name as a benamidar from the previous owner by means of a registered sale deed dated 21st September, 1961, that after purchase the respondent's wife put up construction on the said plot, that the property had been in possession of different tenants including the appellant, that he was managing the suit property as a benamidar for and on behalf of the respondent's wife, J. N. Gupta relinquished all his rights, interest and titled in favor of Smt. Santosh Kumari further delcaring that he has no right, title or interest in the suit property whatsoever any longer. J. N. Gupta died on 31st May 1970, leaving behind his widow, Ganga Devi. It appears that Ganga Devi filed a civil suit against Santosh Kumari, respondent's wife and othtr occupants of the suit property for a declaration that she was the owner of the suit property. This suit, it is admitted, is still pending before the civil court. The respondent's wife died on 9th September. 1975 and the respondent is now contesting that civil suit. The respondent filed that present eviction application, as already stated, in 1979 claiming eviction under Section 14(1)(e) of the Act. It is true that dispute about the title of the suit property is pending in the civil court but the Controller also has jurisdiction to determine whether the respondent was entitled to an order of eviction under Section 14(1)(e) of the Act. There is no bar for the Controller to decide an eviction application merely on the ground that a title suit relating to the suit property was also pending before the civil court. For the grant of an order of eviction under Section 14(l)(e) of the Act it is necessary for the Controller to determine if the respondent was owner-landlord. No provision of law has been brought to my notice that the Controller has no jurisdiction to try and decide the eviction application under Section 14(l)(e) of the Act during the pendency of the said suit in civil court. It is not denied that the civil court under Section 14 of the Act has no jurisdiction to pass an order of eviction against a tenant. The provisions of Section 10 of the Code of Civil Procedure are not applicable and thereforee the eviction proceedings cannot be stayed on account of the pendency of the title suit in the civil court. It is thereforee held that in spite of pendency of the title suit in the civil court the Controller has jurisdiction to try and decide the eviction application under Section 14 of the Act.

(4) The next question raised by the appellant's counsel is that the Release deed dated 12th May, 1969 has not been duly proved. His submission is that the release deed is attested by the witnesses but no marginal witness was produced to prove the release deed. Hs argument is that under Section 68 of the Evidence Act production of the Marginal witness to prove a document required to be attested is essential. There is no dispute about this proposition of law but the question is whether the release deed is required to be attested under any law. A gift deed is required to be attested under Section 123 of the Transfer of Property Act. Similarly, a mortgage deed is required to be attested by the witnesses under Section 59 of the Transfer of property Act. A will is required to be attested by the witnesses under Section 63 of the Indian Succession Act. No provision has been brought to my notice to show that the release deed is required to be attested by the witnesses. The release deed Ex. A. W. 11 is not required to be attested and thereforee Section 68 of the Evidence Act is not applicable. Learned counsel has referred to Naresh Chandra Bose vs . State of West Bengal and others, : AIR1955Cal398 , Jadeja Natwarsinghji vs. Thacker Arjan Mundarji, Air 1950 Kutch 17(2), Radha Ballab and another vs . Deoki Nandan and others : AIR1932All320 and Baharal Hussain vs . Mahadeo Ramji Deshmukh and other . All these authorities lay down that if a document is required by law to be attested by witnesses, production of such a witness was necessary to prove the document. These judgments do not help the appellant.

(5) The next question is whether the release deed stands proved. The respondent as A. W. I has deposed that his wife Smt. Santosh Kumari was the owner of the suit property and after her death he became the owner. He has further deposed that his wife had purchased the property benami in the name of her maternal uncle J. N. Gupta and that J. N. Gupta has executed a registered release deed in her favor that the release deed was executed in his presence and that he signed as a witness. From the document it appears that he is not a marginal witness but he identified J. N. Gupta before the Sub Registrar. In other words he was a witness before the Sub Registrar. In cross-examination execution of the Release deed has not been challenged by the appellant. The appellant appeared as his own witness and he did not challenge the execution of the release deed. On the contrary he expressed his ignorance about the execution of the release deed in crossexamination. Thus it must be held that the release deed in favor of respondent's wife was duly executed and registered by J. N. Gupta. Both the Controller and the Tribunal have also held to that effect. There is no ground to interfere with the said finding.

(6) The release deed is a registered document and all endorsements of the Sub-Registrar are presumed to be correct under Section 60 of the Indian Registration Act. The executant J. N. Gupta appeared before the Sub Registrar and admitted its execution in the presence of witnesses including the respondent who appeared before the Sub- Registrar at the time of presentation and registration of the document by a Sub Registrar.

(7) Learned counsel for the appellant next submits that the evidence led by the respondent is beyond pleadings. His submission is that the respondent in the replication had pleaded that the release deed was executed in his favor. while he has lead evidence to show that the release deed was executed in favor of his wife. It is correct that in the replication it was stated by the respondent that J. N. Gupta had. executed the release deed in his favor but the appellant and the respondent were aware throughout the trial of the eviction proceedings that the disputed release deed was executed by J. N. Gupta in favor of Smt. Santosh Kumari, wife of the respondent. The suit in the civil court is pending where the appellant and the respondent are also parties. In the present trial also the parties have led evidence and they have referred to the release deed executed by J. N. Gupta in favor of Smt. Santosh Kumari. Learned counsel submits that no amount of evidence can be looked in a plea which was never raised in the pleadings. There is no dispute about this legal position. But this rule has no application to a case where the parties go to trial with knowledge that a particular question is in issue. (See Wagubai, Ammal and others vs. B. Shama Rao and others, 1956 S.C. 593(5) and Raj Bahadur and others vs. Smt. Sushila Devi Nigam and others, (6). Further such an objection was never ra1981 (1) R.C.R. 512ised by the appellant before the Controller or the Rent Control Tribunal and he cannot be allowed to raise this objection now. No prejudice has been caused to him.

(8) Learned counsel for the appellant next submits that Ganga Devi widow of J. N. Gupta who was ostensible owner of the suit property was a necessary party to the present litigation. The respondent does not claim any relief against Ganga Devi. It cannot be said that without impleading Ganga Devi relief cannot be granted to the respondent. necessary party is one whose presence before the court is enjoined by law or in whose absence suit or action cannot be decided. Ganga Devi does not occupy any such position. The respondent can prove ownership, relationship of landlord and tenant and other ingredients of Section 14(1)(e) of the Act. Ganga Devi does not come in to the picture at all. Ganga Devi is also not a proper party to the present litigation. The proper party is one whose presence may be desirable before the court in order to adjudicate upon the matters involved in the action. Ganga Devi has already filed a civil suit against respondent and her rights are not prejudicted by the decision if the present eviction application. The respondent cannot be compelled to make Ganga Devi a party to the present litigation. Ganga Devi made an application under Order I rule 10 of the Code of Civil Procedure before the Controller for being imp leaded as a respondent. Her application was dismissed vide order dated 26th November, 1979. She has not challenged the said order in any way whatsoever. The appellant has a right to contest the claim of the respondent but he cannot force the respondent to implead a third party whose presence is neither necessary nor proper for the decision of the eviction case. The point that Ganga Devi was a necessary or property party was not raised before the Tribunal and thereforee such a question cannot be allowed to be raised in second appeal. A point which was not raised before the Controller or Tribunal cannot be raised in appeal under Section 39 of the Act.

(9) Learned counsel next submits that if Santosh Kumari, respondent's wife is held to be the owner-landlady, her all heirs after her death became owner-landlord and as the present eviction petition was filed by the respondent without impleading other heirs the same is liable to be rejected. The respondent initially claimed himself to be sole owner under a Will by his wife. The Controller and the Tribunal have held that the Will was not duly proved. In the absence of the Will all heirs of Smt. Santosh Kumari would inherit the property and they shall be owners-landlords of the suit property. The respondent made an application under Order 6 rule 17 of the Code for impleading other heirs of his wife to the eviction proceedings. He also filed the proposed amended eviction petition. The appe. lant resisted the application on the ground that the respondent was changing the nature of the case. The Controller by order dated 26th November, 1979 dismissed the application for leave to amend. The appellant is now estopped. It is true that if a landlord dies all his heirs become landlords and if they wish to evict a tenant all must be parties to the eviction proceedings either as petitioner or as respondent. The respondent has deposed that other heirs of his wife have no objection to the present eviction petition. As a matter of fact the eviction is being claimed by the respondent for the benefit of himself and all other heirs. No such objection was raised before the Tribunal and the appellant cannot be allowed to raise the same in second appeal. Learned counsel for the respondent submits that the respondnt is a co-owner and thereforee had a right to institute the eviction application in his own name. Hs refers to Sri Ram Pasricha vs . Jagannath and others, : [1977]1SCR395 . In that case the plaintiff was admittedly a landlord. He was a co-owner and the question for decision was whether a co-owner who was admittedly a landlord had a right to claim eviction on the ground of bona fide requirement. The facts of that case are not applicable to the instant case. In Kante Goel v. S. P. Pathak etc. 1977 R L R 201 other heirs of the owner-landlord were respondents to the eviction proceedings. In Khurshid Haider etc. v. Zubeda Begum, 1979 R L R 161 it is not clear whether there was more than one landlord. It was no doubt held that a co-owner has a right to institute an eviction application. If the landlords are more than one, all must be parties to the eviction case either as petitioner or as respondent. But in the instant case the respondent approached the court for leave to amend eviction application to implead all heirs. The other heirs, in the absence of Will, were necessary parties and the Controller ought to have allowed leave to amend. The order of the Controller dated 26th November, 1979 refusing to implead other heirs is set aside. The application to implead heirs is allowed and the amended eviction application already filed is taken on record. The other heirs are not objecting to the respondent's right to claim eviction. The other heirs i.e. respondents No. 2 to 7 in the amended eviction application may file in writing that they have no objection to the grant of the eviction order against the appellant.

(10) Next learned counsel for the appellant submits that the eviction proceedings were barred by Section 281A of the Income-tax Act, 1961. It reads as under : '281A(1) No suit to enforce any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be instituted in any court by or on behalf of a person (hereafter in this section referred to as the claimant) claiming to be the real owner of such property unless (a) the income, if any. from such property has been disclosed in any return of income furnished by the claimant under this Act; or (b) such property has been disclosed in any return of net wealth furnished by the claimant under the Wealth-Tax Act. 1957: or (e) notice in the prescribed form and containing the prescribed particulars in respect of the property has been given by the claimant to the Income-tax Officer. (2) The Income-tax Officer shall, on an application made by any person in the prescribed manner and on payment of the prescribed fees. issue for the purposes of a suit referred to in sub-section Cd relevant extracts from the return furnished by such person under this Act or the Wealth-tax Act, 1957(27 of 1957), or a certified copy of any notice given by such person under clause (c) of sub-section (1) within fourteen days from the date of receipt of the application thereforee. (3) This section shall not apply to any suit of a value not exceeding two thousand rupees which tried by (a) A court of Small Causes constituted under the Presidency Small Cause Courts Act, 1882 (15 of 1882), or the Provincial Small Cause Courts Act, 1887 (9 of 1887); or (b) a Court invested with the jurisdiction of a Court of Small Causes, by or under any enactment for the time being in force, in the exercise of such jurisdiction'. Such an objection was not raised by the appellant in the written statement. The question is a mixed question of law and fact. It cannot be allowed to be raised. Moreover initially the purchase was benami in the name of J. N. Gupta but when release deed was executed on 12th May, 1969 in favor of respondent's wife the dispute regarding benami nature ceased to exist. The respondent claimed ownership of the suit property on the basts of the release deed. Section 281A of the Income-tax Act is, thereforee, not applicable to the facts of the present case.

(11) Learned counsel for the appellant next submits that he should be given an opportunity to lead evidence to prove that the respondent has sufficient accommodation and that his sons are not dependent upon him. Additional evidence cannot be allowed at the will of a party. The Controller and the Tribunal have recorded a finding of fact that the requirement of the respondent was bona fide. Such a finding cannot be interfered in second appeal unless it is shown that in reaching it a mistake of law is committed or it is based on no evidence or is such as no reasonable man can reach (See : Mattumal Vs . Radhe Lal, : [1975]1SCR127 ) . In the instant case I do not find that the finding is not based on evidence or that it is perverse or that the finding was arrived at contrary to law. Learned counsel next submits that sufficient evidence is not on record in support of the various findings. The question regarding sufficiency or adequacy of evidence to support a finding of fact cannot be agitated in a second appeal. (See : Madmanchi Ramappa and another Vs . Muthaluru Sojiappa : [1964]2SCR673 ).

(12) The respondents 2 to 7 in the amended eviction petition as discussed above, are directed to file in writing in this court within three months from today, that they have no objection to the passing of the eviction order against the appellant. Further the eviction order passed in this case will be for the benefit of all the heirs of respondent's wife. The respondents 2 to 7 in the amended eviction application are directed to be imp leaded as respondents Nos. 2 to 7 in this second appeal. The registry may make necessary correction in the Memo. of Parties. The second appeal is dismissed with no order as to costs. The appellant is granted three months to vacate the premises.


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