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Laxmi Kant Mukt Vs. Jitender Kumar Aggarwal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 221 of 1979
Judge
Reported in18(1980)DLT40
ActsStamp Act, 1899; Indian Regulation Act - Sections 17; Delhi Rent Control Act, 1958 - Sections 39
AppellantLaxmi Kant Mukt
RespondentJitender Kumar Aggarwal
Advocates: H.S. Dhir,; S.L. Bhatia and; N.K. Aggarwal, Advs
Cases ReferredShri Virendra Pal v. Sri Daljit Sandhu Civil Revision No.
Excerpt:
.....- section 17 of indian regulation act and section 39 of delhi rent control act, 1958 - second appeal by tenant seeking reversal of order of tribunal directing eviction of tenant - no infirmity in finding of tribunal - respondent owner of demised premises - bona fide requirement of owner can be made basis for eviction of appellant from premises in dispute - order of tribunal upheld. - - 6) that the concurrent findings that the respondent herein was not only the landlord but the owner as well, had not been varied by this court the said appeal was decided on a narrow ground that shri jatinder kumar being the landlord of the demised premises was entitled to she recovery of the rent as claimed. that the eviction petition is bad as it sought partial eviction of the tenant from the..........the plaintiff is the owner of this property. the courts below have held that this is a joint hindu family property, that there was a partition and that there was a rearrangement by reason of which the ground-floor of the property came to the share of the respondent-plaintiff. in my opinion, it is not necessary to go into this question at all. i have not asked the appellant's thereforee, express any opinion on the question of ownership.'(3) the said judgment of this court is on the record of this case as exhibit r. 6. avadh behari j , while affirming the decrees of the courts below, had further observed in the penultimate paragraph of the judgment that 'in the plaint the case of the plaintiff was that he was the landlord and the defendant was his tenant. i have decided this appeal on this.....
Judgment:

Charanjit Talwar, J.

(1) This is a second appeal by the tenant seeking reversal of the judgment of the Rent Control Tribunal, Delhi, passed on March 15, 1979 dismissing the appeal of the tenant but allowing the appeal filed by the landlord, and directing the tenant's eviction under S. 14(1)(e) of the Delhi Rent Control Act.

(2) The first question required to be decided at the threshold is whether the respondent is the owner of the demised premises? If he is not, his requirement of those premises even if proved to be bonafide cannot be made the ground for tenant's eviction. Admittedly, the respondent herein had been held to be the landlord as also the owner of the demised premises in an earlier suit which he had filed for recovery of Rs. 5.000.00 on account of arrears of rent against the present appellant, by the trial court which finding was affirmed by the 1st Appellate Court. The tenant's second appeal (R. S. A. No. 105 of 1969) was dismissed on September 30, 1975, by.Avadh Behari, J. While upholding the concurrent Avadh Behari J. had expressed no opinion on the question of ownership and observed thus :

'THERE is a concurrent finding that the plaintiff is the owner of this property. The Courts below have held that this is a joint Hindu family property, that there was a partition and that there was a rearrangement by reason of which the ground-floor of the property came to the share of the respondent-plaintiff. In my opinion, it is not necessary to go into this question at all. I have not asked the appellant's thereforee, express any opinion on the question of ownership.'

(3) The said judgment of this Court is on the record of this case as Exhibit R. 6. Avadh Behari J , while affirming the decrees of the Courts below, had further observed in the penultimate paragraph of the judgment that 'in the plaint the case of the plaintiff was that he was the landlord and the defendant was his tenant. I have decided this appeal on this main ground. In the replication the questions of ownership, joint Hindu family, partition, re-arrangement were all set out. The Courts have decided those questions also in favor of the plaintiff. But in my opinion the suit could have been decided on this other ground.'

(4) It is obvious from the judgment (Exhibit R. 6) that the concurrent findings that the respondent herein was not only the landlord but the owner as well, had not been varied by this Court The said appeal was decided on a narrow ground that Shri Jatinder Kumar being the landlord of the demised premises was entitled to she recovery of the rent as claimed. However, as no opinion had been expressed by this Court on the aspect of the ownership, the learned Tribunal went into this question. After analysing the evidence in detail, it found that the respondent was the owner of the premises in dispute. It has been held by the learned Tribunal that the premises, namely House No. 30, Block No. 61, Rohtak Road, Karol Bagh, New Delhi was a joint Hindu family property; that there was a partition between members of the joint Hindu family; and that there was rearrangement between them by which the ground-floor of the property came to the share of the respondent.

(5) Mr. Dhir, learned counsel for the appellant, challenges these findings. His objections are :

(1) The award (Exhibit A 4) recognizing the shares in which the property had been earlier partitioned and also the decree (Exhibit A 5) making the said award a rule of the Court, were a nullity as they had not been executed on a stamp paper and had not been compulsorily registered. (2) The re-arrangement between the members of the joint Hindu family by which the ground-floor came to the share of the respondent is illegal being in contravention of Section 54 of the Transfer of Property Act.

(6) On facts the learned Tribunal has found that the partition admittedly took place in the year 1958 and the Income Tax Officer vide his assessment order (Exhibit A. W. 2/2) passed on 2.1.1961 had accepted the partition of the said property. In the year 1959, after the partition of the property, the tenant-appellant herein had handed back the possession of a room and a garage on the ground-floor to the then landlord and the rent was accordingly reduced from Rs. 185.00 to Rs. 140.00 per mensem. This fact had been admitted by him in cross-examination. It cannot) thereforee, be alleged that the oral partition of the Hindu undivided family property was for any collateral purpose. In any case, in second appeal this Court cannot re-assess this finding of fact.

(7) Now turning to the objections of Mr. Dhir I find that the said award recognizing the oral partition between the members of the family, which had earlier taken place, and the decree making it a rule of the Court, has been rightly held by the learned Tribunal not to require execution on a stamp paper or to be compulsorily registered. Mr. Dhir has not cited any authority to show that the award recognizing the past family arrangement is to be executed on a stamp paper or requires compulsory registration. This contention has no force. The objection regarding the re-arrangement amongst the members of the family being in contravention of Section 54 of the Transfer of Property Act is also not tenable as admittedly this re-arrangement was made prior to December 1, 1962, the date on which the Transfer of Property Act was made applicable to Delhi.

(8) There is another aspect of this case which has to be kept in view. It was only because of re-arrangement between the members of the family that the ground-floor came to the share of the respondent and, thereforee, his claim as a landlord for recovery of Rs. 5,000.00 on account of arrears of rent had been decreed in his favor. The reasons for finding the plaintiff (respondent herein) in the said suit to be a landlord are also valid for holding him to be the owner of the demised premises. I, thereforee, find no infirmity in the finding of the Rent Control Tribunal that Jatinder Kumar, respondent herein, is the owner of the demised premises. Thus his bona-fide requirement can be made the basis for eviction of the appellant from the premises in dispute. However, before adverting to the owner's bona-fide requirement, I may notice the other three submissions made by Mr. M. S. Dhir, learned counsel for the appellant. He urges that the landlord not having appeared as his own witness, an adverse presumption should have been drawn against him by the authorities below; that he was not willing to swear that he required the premises bona-fide for his residence; that the eviction petition is bad as it sought partial eviction of the tenant from the rented premises; and lastly that the ground of eviction covered by Clause (k) of Sub-section ( 1 ) of Section 14 of the Act was not attracted as the lease deed of the land on which premises are situate, had not been executed in favor of the respondent.

(9) Mr. Dhir submitted that on the proposition of adverse presumption there was a conflict of opinion in this Court and the matter, thereforee, needs to be decided by a larger Bench. According to him, V. D. Misra, J. (as he then was) in Shri Virendra Pal v. Sri Daljit Sandhu Civil Revision No. 373 of 1977, decided on September 14, 1977 and reported in 1978(1) R. C. J. 365 had held that if the landlord failed to appear in the witness-box to prove his bona-fide requirement, an adverse presumption must be drawn against him, Avadh Behari, J. had taken a contrary view in Khurshid Haider and others v. Mst. Subeda Begum, S.A.O. No. 335 of 1972 decided on December 15, 1978 and reported in 1979(2) R. C. R. 61.I am of the view that there is no conflict in the above-said two decisions. Avadh Behari, J., after noticing the ruling in Shri Virendra Pal's cuse (supra) observed that it did not lay down any rule of law. On the facts of that case it was decided that the landlord had been unable to prove his bona-fide requirement to stay in Delhi. The ground on which the eviction in the earlier case was sought was that the landlord wanted to shift to Delhi from Muktsar for the purposes of his treatment. In support of his case he had produced his attorney whose evidence regarding the intentions or the state of the mind of the landlord to live on the ground-floor or the first-floor of the premises situate at Delhi, was not considered sufficient to prove the owner's bonafide requirement. In the appeal before Avadh Behari, J. the facts were widely different and the said ruling in Shri Virendra Pal's case (supra) was found not to be applicable. The facts, before me in the present case, are also different. Admittedly, the landlord has in his exclusive possession only one room and garage on the ground-floor of the demised premises. Admittedly, his family consists of his wife and six children, who have no other reasonably suitable accommodation in Delhi. I have already held that bona-fide requirement of the premises in occupation of the tenant is not open to question. In any case, the finding of the Rent Control Tribunal that the respondent requires the premises bonafide for himself and the members of his family dependent upon him is a pure finding of fact, and in second appeal I cannot interfere with that finding. The decree granted in his favor under Section 14(1)(e) of the Act is proper and valid.

(10) The third submission of Mr. Dhir that the eviction petition sought only partial eviction of the appellant from the demised premises as, according to him, in paragraph No. 8 of the petition, a store and the verandah (in the tenant's possession) had not been mentioned therein, is also mis-conceived. Admittedly, the plan attached with the eviction petition had correctly shown the premises in occupation of the tenant. It is relevant to quote below paragraph No. 8 of the eviction petition as well as the reply thereto in the written statement filed before the Controller :

'8. Details of accommodation The premises let to the respondent are available together with situate on the ground-floor consisting particulars as regards of four rooms, a back court-yard, bath, ground area, garden and W.C. and verandah, all three in comout houses, if any (plan mon use. The said premises are shown to be attached), in colour red in the plan attached herewith. Paras 8 and 9 as stated are not admitted and thus denied. In this connection the submission made in para 4 of the preliminary objection may be Reply in written statement, read. The tenanted premises in the occupation of the answering respondent are consisting of 5 rooms with verandahs, stores, kitchen, back and front courtyards, baths and W.C. are in the exclusive use and occupation of the answering respondent. The plan given by the petitioner is wrong and not in respect of the tenanted premises. The petition accordingly is defective from this infirmity and is liable to be rejected.'

The reply of the tenant clearly shows that the objection which is being taken before me, had not been raised in the Trial Court. The tenant, it is apparent, had filed the reply after perusing the plan. Mr. Dhir's contention that the copy of the site plan is never supplied to the opposite side and as such the admission, if any, of the appellant in the written statement be ignored and the case be decided only on the averment contained in the eviction petition which averment admittedly does not give full particulars of the premises in occupation of the tenant, is also to be rejected. No grievance was made by the tenant of non-supply of the plan of the premises. In fact, the said plan was questioned by the tenant. The submission that as full particulars were not mentioned in the eviction petition and, thereforee, it should be assumed that the landlord was seeking ejectment only from that portion which was mentioned in the petition, is of no merit. I find that the parties were not at variance regarding the fact that eviction was being sought from the whole of the premises in possession of the tenant. Non-mention of the full particulars of the premises in possession of the tenant does not vitiate the proceedings as has been urged. In the present case, I find that it has not resulted in any failure of justice. The Rent Control Tribunal has rightly held that the plan, which gave full particulars, is to be read as a part of the eviction petition, I, thereforee, negative the third contention raised on behalf of the. appellant,.

(11) The last contention of Mr. Dhir is also of no avail to him. The learned Tribunal, while affirming the finding that the tenant-appellant is also running aschool in the premises in dispute, has not passed the eviction order under clause (k) of Sub-section ( 1 ) of Section 14 of the Act in view of the fact that the order for eviction was being passed under Sub-clause (e) of Subsection (1) of Section 14. To order under sub-section (11) of Section 14 was, thereforee, passed. The question raised before me, thereforee, is merely academic. In the present case, it is unnecessary to take recourse to Sub-section (11) of Section 14 of the Act. Assuch, it is purposeless to dilate on this point.

(12) The result is that the appeal fails and the parties are left to bear their own costs.

(13) I would, however, grant three months' time to the tenant-appellant to vacate the premises on the condition that the rent due is deposited by the 10th of February, 1980, and for the succeeding months of February and March, 1980 by the 10th of March, 1980. The appellant, who is present in Court, undertakes to give peaceful vacant possession of the said premises on the 18th of April, 1980. His statement regarding the assurance has been recorded separately.


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