Sultan Singh, J.
(1) This second appeal is-on behalf of the landlord under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter2 called 'the Act') is directed against an order dated 19th September, 1977 of the nt Control Tribunal, Delhi reversing the judgment and order of eviction against the appellants passed by the Additional Controller on 31st July, 1972 and finally dismissing the eviction application. Behari Lal, prodecesssor of the respondents, was a tenant on the first floor and the Barsati floor of property No. 11320/1 Plot No. 14-A/41, Western Extension Area, Karol Bagh, New Delhi under the appellant. He died in 1962 leaving behind his widow Smt. Durga Devi, five sons and three daughters. Smt. Durga Devidied on 29th June, 1967 leaving behind the respondents as her heirs and legal representatives. The respondents thus 'became tenants being heirs of Behari Lal and Smt. Durga Devi under the appellant. After the death of Behari Lal, his widow
(2) Smt. Durga Devi built a property on Plot No 14-A/47, Western Extension Area. Karol Bagh, New Delhi some time in 1965 or 1966 and acquired vacant possession thereof. As already stated, she died on 29th June, 1967 and thereforee the said property was inherited by the respondents as her heirs. The present eviction application was filed, on 14th February, 1968 claiming eviction of the respondents under Section 14(l)(h) of the Act The appellant alleges that Smt. Durga Devi occupied a newly built house for residential purposes during her lifetime and that after her death the respondents being owners of the same acquired vacant possession of the said property and as such the respondents are liable to eviction. The appellant further alleges that respondents 1, 3, 6 and 8 have also got their separate accommodation for their residence. The respondents setup a Will dated 10th December 1966 alleging that the property built by their mother devolved upon Ravinder
(3) Kumar, Rajinder Kumar and Smt. Santosh, respondents 4, 5 and 7 respectively, that their mother disinherited all other respondents from the said property. The other respondents plead that they have not acquired the vacant possession of any portion of property built by their mother. The validity of the eviction notice is also denied. The Additional Controller, as already stated, by his judgment dated 31st July, 1972 passed an order of eviction against the respondents holding that the Will set up by the respondents was not a genuine Will, that the respondents acquired vacant possession of the property at Plot No. 14-A/47 Western Extension Area, Karol Bagh, New Delhi and that valid notice of eviction was served upon the respondents. Prem Nath and Pran Nath respondents filed an appeal challenging the eviction order dated 31st July, 1972 before the Rent Control Tribunal. The Tribunal accepted the appeal holding that the eviction notice was not validly served as It was served on some of the heirs of Behari Lal and not upon all. Consequently, the Tribunal dismissed the eviction application and hence this second appeal.
(4) Learned counsel for the appellant submits that the notice of eviction was duly served upon all the respondents and in any case he says that notice of eviction is not necessary to be served upon the respondents for claiming eviction under the Delhi Rent Control Act, 1958. He relies upon the latest Supreme Court judgment in V. Dhanapal Chettiar v. Yesodai Ammal, : 1SCR334 . Learned counsel for the appellant further submits that Smt. Durga Devi, widow of, Behari Lal admittedly built a property at Plot No. 14-A/47, Western Extension Area, Karol Bagh, New Delhi which was inherited by the respondents. He says that the respondents have thus acquired vacant possession of the said property and thereforee they are liable to be evicted on the ground mentioned in Section 14(l)(h) of the Act. This appeal is being contested only by respondents 1 and 2, namely, Prem Nath and Pran Nath and their learned counsel submits that the Tribunal has. not given its findings on merits and thereforee the appeal should be remanded for decision on merits in accordance with law. Learned counsel for the appellant, however, submits that there is sufficient evidence on record and that remand of the case would only cause delay and increase costs to the parties. He says that the eviction petition was filed in 1968 and that it should be decided at the earliest. Section 103 of the Code of Civil Procedure reads as under :
'SECTION 103 : Power of High Court to determine issue of fact : In any second appeal the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- (a) which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court, or (b) which has been wrongly determind by such court or courts by reason of a decision on such question of law as is referred to in Section 100.'
(5) Under this section the High Court in a second appeal is empowered to determine the issues which have not been determined by the lower appellate court or both the courts of the first instance and the lower appellate court. This can be done only when there is evidence on record sufficient for the purpose of pronouncing a judgment. It is not contnded by either of the parties that the evidence on record is insufficient to enable this court to pronounce a judgment. Learned counsel for the appellant, however, submils (C.M. No.3740 of 1980) that application of Rajinder Kumar under Section 276 of the Indian Succession Act was dismissed by the District Judge vide his judgment and order dated 15th March, 1980. He, thereforee, submiss that the subsequent event to the effect that there is no valid will of Smt. Durga Devi as held by the District Judge be also taken into consideration while disposing of the present appeal, He further says that the matter regarding validity of the Will has been finally decided by the District Judge by order dated 15th March,1980 and, thereforee, the same cannot be re-agitated in this appeal. He says that the proceedings belore the District Judge were contested proceedings and the proceedings betore him were in the nature of a regular suit under Section 295 of the Indian Succession Act. 1925. He, thereforee, says that the same question cannot be agitated under the principles of res-judicata as contained in Section Ii Explanationn Viii of the
(6) Code of Civil Proceedure. Learned counsel for the respondents argues that no additional evidence can be admitted in the second appeal. In fact, he says that additional evidence in second appeal is not permissible. He relies upon The Secretary of State for India v. ManJeshwar Krishnaya, I.L.R. 31 Mad 415 Wali Muhammad and others v. Muhammad Bakhsh and others, 1924 Lah 444, Shamsuddin bids was and others v. Molannessa Bibi and others, Air 1926 Cal 941, P.V. Subba Raja v. S.S. Narayanana Raja and others, : AIR1954Mad1074 , Balvant Yadneshwar v. Sriniwas Appaji Kulkarni, Air 1959 Mysore 244, Lilaram Jamiatraj and others v. Meghraj Hardasmal Kalwani and others, : AIR1972Guj66 and Thakkar Anandji Parshottamdas and others, v. Dharamshi Kalabhai (deceased) and others, : AIR1972Guj70 . Learned counsel for the appellant on the other hand submits that the judgment dated 15th March, 1980 of the District Judge is not in the form of an additional evidence but it is a subsequent event which the court may take into consideration while deciding the appeal. He further says that there is no bar for recording additional evidence in second appeal and relies upon Surinder Kumar Goya! v. B.N. Javeri 1979 (1) R C.R. 265 wherein it is observed that the High Court has power to admit evidence of facts and take notice of facts which have arisen after the case was originally tried and that evidence will have to be recorded if facts are disputed. That was a case under Section 39 of the Act. Thus I am of the view that the decision of the District Judge dated 15th March, 1980 holding that the Will dated 10th December, 1966 is not a genuine Will can be taken note of in the second appeal. Learned counsel for the respondents submits that this court should not exercise the jurisdiction vested in the Tribunal. He says that the power to decide the question of facts with the Tribunal and that the respondents would lose their right of second appeal which is a vested right under the Act if the matter is now decided by this court. He further says that there is no extraordinary reason why this court should take the burden of deciding the question of facts which has not been decided by the Tribunal. I do not agree with this view. Section 103 of the Code of Civil Procedure confers power on this court to decide questions offacts even in cases where the facts have not been decided by the lower appellate court. As already stated, this eviction petition was filed in 1968 and the ground of eviction is that the respondents have acquired vacant possession of residence within the meaning of Section 14(1)(h) of the Act. I, thereforee, hold that it is proper for this court to decide the case although the Tribunal has not expressed its opinion on questions of fact arising in this appeal.
(7) Counsel for the parties have taken me through the evidence on record. The Additional Controller has returned the finding that the Will in question is not a genuine Will and this Tact has been further confirmed by the District Judge in Probate Proceedings by his order dated 15th March, 1980. Learned counsel for the respondents has also not challenged this finding of the Additional Controller. I, thereforee, hold that the Will dated 10th December, 1966 is not a genuine Will and that the property built by Smt. Durga Devi, mother of the respondents, on Plot No. 14-A/47, Western Extension Area, Karol Bagh, New Delhi was inherited by all the respondents on her death. She died on 29th June, 1967. Mr. Murari Lal Jain, Advocate, A.W. 2 visited the said property on 23rd August, 1967 at the instance of the Controller in an earlier proceeding between the parties. In the report Ex.A. 1 he says that three rooms on the ground floor were lying vacant, that the three rooms on the first floor were in possession of one S. Raja and the second floor was in possession of one Raghunath. This was the position as on 23rd August, 1967. Thus it is clear that the ground floor according to this report of the Commissioner was lying vacant on that date. Aclerk from the Telephone Department A.W. 1 deposes that a telephone was installed in the name of 1.B.M. World Trade Corporation, New Delhi in the said premises which was in the name of S. Raja on 2nd September, 1967. He further states that the said telephone was shifted thereafter to D-252, defense Colony, New Delhi. The statement of this witness was recorded on 29th October, 1968, Thus it seems that S Raja of 1.B.M. World Trade Corporation who was occupying the first floor also shifted from the said property. The appellant-landlord as A.W. 4 stales that S. Raja, occupant of first floor, vacated the property, that second floor was in occupation of the respondents, that on the grouud floor Smt.
(8) Durga Devi was residing who died on 29th June, 1967 and thereafter the property has been in occupation of the respondents. He also says that Ram Nath resides in Naiwala, that Pran Nath resides in Delhi Cantt, that Smt. Sanjogta is at Chandigarh and Smt. Swaran is at Rajinder Nagar. So this is the evidence on behalf of the landlord to show that after the death of Smt. Durga Devi, mother of the respondents, the property in question built by her was vacated by the tenant on first floor and that the entire property thereafter has been in possession of the respondents. The evidence on behalf of the respondents is to the effect that Smt. Durga Devi, mother of the respondents, was residing in her newly built house and she died in that house, that Prem Nath used to reside in the suit house while the two brothers and kone sister used to reside in the house built by their mother. Pran Nath. R.W. 4, is in Air Force. He says ahis family resides in the suit premises when he is on duty in Forward Area. Prem Nath, respondent appeared as R.W, 6. He says that his mother constructed the house in 1966, that be, his brothers Ram Nath and Pran Nath were not given any right in the house of their mother under the Will, that Ravinder Kumar, Rajinder Kumar and Smt. Santosh have been in occupation of the newly built house since 1967, that he lives in the suit premises. The contention of the learned counsel for the respondents is that respondents I and 2 in this appeal never acquired vacant possession of any portion of the house built by their mother, that the Will was not contested by them and at best these respondents are heirs along with other six children of Smt. Durga Devi, that the eight respondents, in the absence of the Will, inherited the said property and there is no residential accommodation so that each respondent may inherit even one room for his residence. His argument is that if one respondent does not inherit one room for residence it cannot be said that a respondent has acquired vacant possession of a residence within the meaning of Section 14(1)(h) of the Act. His argument, in other words, is that the newly built house by Smt. Durga Devi though inherited by the respondents is not a residence for accommodating all the respondents. Section 14(1)(h) of the Act of 1958 reads as under:
'14(1) (h): that the tenant has, whether before or after the commencement of this Act, built, acquired vacant possession of, or been allotted, a residence'.
(9) The purpose of this provision is not to protect tenant if he has legally acquired another residence as of right. A tenant a.cquires vacant possession of a residence, if he has a right to move in the premises legally aquired by him and lying vacant, in other words, if vacant possession of the premises is available to a tenant and he has a right to occupy the same, it would mean that he has acquired vacant possession of the residence within the meaning of clause (h). Whether the acquired preirises is suitable or net is not the requirement of law for the pasting of an order of eviction. Thus is seems that if a tenant has a. legal right to occupy the premises which he has inherited and which were lying vacant at the time of inheritance or thereafter, he is not entiled to protection under the Act. But if the tenant has no present right of moving into the residential house inherited by him though vacant it cannot be said that such a tenant has acquired vacant possession of the premises. Thus it is to be seen whether the respondents in the present case have acquired vacant possession of the house built by their mother. It is proved on record that Smt. Durga Devi, mother of the respondents, built the property at 14 A/47, Western Extension Area, Karol Bagh. New Delhi in 1966; she died on 20th June, 1967; that the ground floor of this property consisting of three rooms was lying vacant on 23rd August. 1967 when the local Commissioner visited the properly; that S. Raja who was occupying the first floor vacated the same some time in 1978; that the entire property is now in occupation of the respondents. It may be that all the respondents are not in occupation of this property but the legal position is that on the death of Smt. Durga Devi all the respondents aquired and had a right to move into the premises and to occupy the same for the residence. There is no evidence that the contesting respondents 1 and 2 were ever debarred from occupying the property of their mother. Whether the contesting respondents challenge or do not challenge the Will is immaterial. There has been proceeding before the competent court of law wherein it has been held that the Will in question is not a genuine Will. Thus the contesting respondents as heirs are entitled to inherit the property built by their mother and they have also a right of residence therein. If they do not occupy the same for reasons known to them they cannot be heard to say that they have not acquired the vacant possession of the property of their mother. It is immaterial that the newly built house inherited by all the respondents is not suitable or sufficient for the requirements of all the respondents. In Sobha Singh and another Ns.Vinod Kumar, 1975 R.C.R. 447, Avadh Behari, J. held that if a tenant having a large family of 15 members gets a second house on rent to accommodate his family, it amounts to acquiring vacant possession of another residence by him and he is liable to eviction irrespective of the fact that the house acquired by him was not suitable for his requirment. It is further held that the court is not competent to see the suitability of the house acquired by the tenant. Again in Shyam Sunder vs. Khan Chand, 1966 D.L.T. 223 H.R. Khanna, J. (as he then was) held that if a tenant acquires the vacant possession of a residence and the same are insufficient for his requirement he cannot occupy the earlier premises. In the present case, the property was vacant after the death of Smt. Durga Devi and the respondents bad a right to occupy the same for their residence. Thus the respondents ceased to enjoy the protection of law. It is said that the respondents did not and could occupy any portion of the built property, it may be but it is not denied that they had a right to occupy the same when the property was vacant. It subsequently the respondents are net in a position to occupy vacant property they cannot claim protection under the Rent Act. In Hem Chand Baid v. Sml.Prem Wati Parekh, : AIR1980Delhi1 , the Division Bench held that if a tenant lost protection of the Act by committing default contemplated by clause (b), protection is not revived subsequently in any situation. Learned counsel for the respondents rely upon Nindar Mal v. Ugar Sain Jain and another, 1965 D L.T. 53 in support of his submission that the ai quired residence must be sufficient and suitable residence, This was a case under Section 13(1)(h) of the Delhi and Ajmer Rent Control Act, 1952 wherein the tenant was liable to eviction only if he has built, acquired vacant possession of or been allotted a suitable residence. Under the Rent Act, 1958 the word 'suitable' before the word 'residence' stands omitted. Thus the suitability of the acquired accommodation by the tenant is irrelevant while considering the ground of eviction under Section 14(1)(h) of the Act. Learned counsel for the respondents also relies upon Narayanan Ambuanthiri v, Sinaba and others, Air 195 Travancore-Cochin 397 in support of his contention that the respondents have not acquired the property in question. It was a case interpreting the word 'acquired' as used in Section 9 of the Cochin Verumpattamdars' Act. This judement is no authority turn interpreting the word 'acquired' in clause (h) of the present Rent Act.
(10) The Additional Controller passed the order of eviction against the respondents on the ground that the respondents have a right to move into the premises i e. the property built by their mother after her death when it became vacant. I, thereforee, hold that the respondents are liable to be evicted under clause (h) of the proviso to sub-section (1) of Section 14 of the Act. The judgment and order of (be Rent Control Tribunal is not in accordance with law and I, thereforee, set aside the same. The order of eviction under Section 14(1)(h) of the Delhi Rent Control Act, 1958 is thereforee, passed in favor of the appellant against the respondents. The respondents are, however, granted one month's time to vacate the suit premises. There will be no order as to costs.