B.B. Saxena vs Mithlesh Rani
1995 Latest Caselaw 344 Del

JUDGMENT

Arun Kumar, J.

(1) The respondent Mithlesh Rani instituted an eviction petition under clause (e) to the proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the Act) for eviction of the present petitioner from the premises No.67, Block F, Kalkaji, New Delhi on the ground that the tenancy premises was required bona fide by the landlady who was also the owner of the premises for the residence of herself and her family members. The petitioner herein is a tenant with respect to the entire premises bearing No.F-67, Kalkaji, New Delhi comprising three rooms, latrine, kitchen, bath and inner and outer courtyards,varandahs etc. The petitioner herein is an old tenant in the premises. The premises was earlier owned by Shri J.C.Taneja who had inducted the petitioner as a tenant in the premises. After the death of J.C.Taneja his son K.C.Taneja sold the premises to the respondent landlady vide registered sale deed dated 7th June 1985. The eviction petition was instituted in August 1990. After recording evidence of the parties the learned Addl. Rent Controller passed the impugned order dated 2nd November 1993 allowing the eviction petition of the landlady and granting six months' time to the tenant to vacate the premises in view of provisions of Section 14(7) of the Act.

(2) The case of the respondent landlady in the eviction petition is that in view of the sale deed dated 7th June 1985 she is the owner of the tenancy premises. The landlady at the time of institution of the eviction petition as also till now has been residing Along with her family in portion A of House No.E-119, Kalkaji, New Delhi. The said House No.E-119, Kalkaji, New Delhi is built on a plot of land measuring 200 sq.yds. The husband of the petitioner and his elder brother Rajender Das inherited the said house jointly. They partitioned the same between themselves by virtue of a mutual agreement dated 11th My 1982 into two equal portions comprising 100 sq. yds. each. The portion falling to the share of the husband of the landlady is described as portion A while the portion falling to the share of the elder brother of the husband of the landlady is described as portion B. It is further stated that there is a partition wall running through and through the two portions which separates the two portions completely. Both the parties are in occupation of their respective portions and are enjoying the same to the exclusion of the other party. The landlady filed a plan of property, i.e. House No.E-119, Kalkaji, New Delhi clearly showing the portion falling to the share of her husband as also the portion falling to the share of her husband's elder brother. In portion A in the said house which fell to the share of the landlady's husband there is only one room having a puce roof. The size of the room is 14'6" x 9'11". The rest of the accommodation in the said portion consists of only small kotharies having asbestos sheet roofs. These are three kotharies measuring 14'6" x 7', 9'10" x 6'7" and 8'2" x 9'3". The height of these kotharies is also stated to be quite low and in view of the use of asbestos sheet the height gets reduced because of the slant provided in the roofing. Besides the kotharies there is a kitchen of the height of 7' x 6' having asbestos sheet roof and low height. The family of the landlady consists of her husband who is a practicing advocate and three sons who were stated to be of the age of 26 years, 20 years and 19 years at the time of institution of the eviction petition in the year 1990. The landlady has a daughter who was aged 25 years at that time. It is stated at the Bar that the eldest son had been married in the meantime. The husband of the landlady uses the only room which has a puce roof for purposes of his office as an advocate. He also sleeps in t he said room. During the day time when the husband is away to Courts, the said room is used as a drawing room also. Because of the compulsion of non-availability of any other alternative accommodation the family of the respondent landlady is using the rest of the accommodation for its residence. On account of unsuitability and paucity of accommodation it is stated that the family is suffering great hardship and, therefore, the eviction of the petitioner tenant from the property in suit was sought.

(3) In the written statement the tenant raised various pleas including that the landlady was not the owner of the tenancy premises, the tenancy had not been duly terminated, the petition had been filed with the object of pressurising the tenant to increase rent. It was stated by the tenant that the landlady was having five rooms, W.C., bath and kitchen available to her in House No.E-119, Kalkaji, New Delhi. According to the tenant the eldest son of the landlady was not residing with her and had shifted elsewhere. In order to pressurise the tenant to vacate the premises the landlady and/or her husband were responsible for involving the tenant in several false cases filed in Delhi and outside Delhi. The tenant denied the partition between husband of the landlady and his elder brother regarding House No.E-119, Kalkaji, New Delhi. According to the tenant the entire said house was available to he landlady.

(4) Both the parties led oral evidence in support of their respective stands. The landlady duly proved the registered sale deed in her favor regarding purchase of the property in suit. The property also stood mutated in her name in house tax records. The landlady herself has appeared as AW/2 in support of her case and produced the ration card of her eldest son showing the residence of her eldest son with her in the said House No.E-119, Kalkaji, New Delhi. She categorically denied having ever asked the tenant to increase the rent. Rajender Dass, elder brother of the husband of the landlady also appeared as a witness to support the factum of partition of House No.E- 119, Kalkaji, New Delhi. He stated that there is a partition wall dividing the two portions of the house. The partition took place in May 1982 while the partition wall was constructed in the year 1983. According to the witness there is no opening or passage in the partition wall, which shows that the partition of the two portions is complete and exclusive and puts the respective owners into possession of their respective portions. Portion A of the property fell to the share of the husband of the landlady while portion B fell to the share of the elder brother of her husband. Further the said witness categorically stated "the petitioner (landlady) or her family members is not in occupation of any accommodation of portion B. Eldest son of the petitioner is residing with her parents in portion A. He has never separated from his parents". The eldest son of the landlady appeared as Aw 4. He stated that he had always been residing Along with her mother in House No.E-119, Kalkaji, New Delhi. His gas connection and electricity connection are at the address of the said house. The tenant had tried to make out a case that the said son of the landlady was residing with one Mrs.Karmawali Luthra at F-9, Kalkaji, New Delhi. The witness explained that the said lady was a client of the husband of the landlady who is an advocate and there was no question of his residing with her. The tenant examined himself as also one Gopal Kishan Gambhir who was a tenant in F-9, Kalkaji. He was examined to show that the eldest son of the landlady was residing in F-9, Kalkaji with said Mrs.Karmawali Luthra. However, it was disclosed in the cross-examination of the said witness that he was having litigation with his landlady, Mrs.Karmawali Luthra and the husband of the landlady in the present case was the advocate of Mrs.Karmawali Luthra in the litigation between him and Mrs.Karmawali Luthra. This showed that the witness was obviously aggrieved of the fact that the husband of the landlady in the present case was a counsel of the landlady in his case and, therefore, wanted to depose against him. The third witness produced by the respondent is a staff of the college where the tenant himself was teaching and was as such an interested witness.

(5) During the course of hearing of the present petition the only points raised on behalf of the petitioner tenant by the learned counsel were -(a) partition of the property, i.e. House No.E-119, Kalkaji, New Delhi, had not been duly established and, therefore, the accommodation in the entire property was liable to be considered as available to the respondent landlady. (b)the eldest son of the landlady was not residing with her as a member of her family and, therefore, his requirement need not be considered; (c)harassment of the tenant by or at the instance of the landlady showed that the landlady was trying to pressurise the tenant to vacate the premises and, therefore, the eviction petition was not bona fide.

(6) So far as the first point is concerned, it has been stated in the eviction petition itself by the landlady that the property House No.E-119, Kalkaji, New Delhi was inherited by the husband of the landlady Along with his elder brother. Both had equal share in the said property. The said property was partitioned in the year 1982 by mutual agreement of the two brothers and portion A fell to the share of the husband of the landlady while portion B fell to the share of the elder brother of her husband. Apart from this assertion oral evidence has been led by the landlady on this point. The most important evidence is that of the elder brother of her husband who has categorically stated that the partition of the property took place in the year 1982 whereafter a partition wall was erected and both parties took exclusive possession of the respective portions falling to their share. Both parties are enjoying their respective portions to the exclusion of the other. The witness further stated that the landlady's family did not occupy any potion in the portion B which had fallen to his share. He also stated that the partition wall did not have any passage or opening so as to enable one party to go to the portion of other party. This showed that the partition was complete and put both the parties in exclusive possession and enjoyment of their respective portions. In law even a family arrangement which may be oral is recognised on the question of partition of joint properties. In the present case not only the factum of partition was duly pleaded and evidence was led on the point, it has been shown that the partition was duly acted upon. A partition wall was erected and exclusive possession was enjoyed since then by both the parties of their respective portions. Therefore, non-production of the document by which the partition took place loses its significance in the facts of the present case. The witness (AW-3) said "I partitioned this house with my brother, the husband of the petitioner (landlady) in May 1982 and partition wall was raised in 1983 January. There is no passage in between these portions. I am in occupation of B portion while my brother is in occupation of portion A". In the eviction petition it has been stated that the partition took place between two brothers by virtue of mutual agreement dated 11th May 1982. The learned counsel for the petitioner tenant has urged that the agreement was never produced before the Court and non-production thereof vitiates the entire case on partition of the property. The answer to this is - first the agreement could be oral which is well recognised in law. Secondly, the tenant should have perused the cross-examination further and called upon the witness to produce the written agreement in the event of the witness admitting existence of a written agreement. Therefore, non-production of the alleged partition document is nether here nor there. Learned counsel for the petitioner tenant also tried to challenge the partition on the ground that better accommodation was allotted to the elder brother of the husband of the landlady in the partition while accommodation having only asbestos sheet roofing was allotted to the landlady's husband. On this basis he tried to urge that in fact there was no partition and the accommodation in portion B was available for use of the members of he landlady also, specially in view of the fact that according to the tenant the family of the elder brother of landlady's husband consists of only the old couple and none else. This argument is belied by the evidence on record. Further the argument is wholly misconceived and untenable. A bare perusal of the site plan of House No.E-119, Kalkaji, New Delhi shows that the only way the said property could have been partitioned into portions was the way it was actually partitioned by them. It is a rectangular plot and a verticle partition lengthwise could be the only possibility in order to ensure that frontage was available to both the parties. Evidence on record shows that the family of the landlady has no access to the portion B which has fallen to the share of the elder brother of her husband nor her family is enjoying any accommodation in that portion. Therefore, the argument challenging the partition between the two brothers does not impress at all. The same is, therefore, rejected.

(7) Regarding the eldest son of the landlady residing with her and having taken a separate residence again it has to be observed that the argument is not supported by evidence on record and is, therefore, untenable. The witness produced by the tenant to support this argument has been shown to be a liar. I have already referred to his evidence. Moreover, the said son of the landlady has himself appeared as AW-4 and besides stating that he is residing with his mother in the property House No.E-119, Kalkaji, New Delhi, has produced documentary evidence in support thereof. The documentary evidence consists of Gas and Water connections in his name in the premises. Ration card shows he is resident of this house. The landlady's own case is that the said son is residing with her and is dependent on her for purposes of residence. I, therefore, do not find any substance in this point.

(8) Lastly the point regarding pressure of the tenant on account of false litigation being foisted on him at the behest of the landlady has to be considered. Nothing was placed on record in support of this assertion. Secondly, if there was any substance in the said allegation the tenant could have pursued remedies available to him under the law against such acts of another. Looking at the otherside of this argument it has to be observed that the eviction petition has to be decided on its own merits, i.e. whether the landlady is able to make out a case for the bona fide need of the tenanted premises for the residence of herself and her family. In the present case having regard to the nature of the accommodation available with the landlady it cannot be said that the need of the landlady of the tenancy premises for residence of her family is not bona fide. The small rooms (kotharies) having asbestos sheet cannot be said to be reasonable accommodation for a family specially where the head of the family is a practicing advocate and the family enjoys a status. It is admitted by the respondent that except for one room the rest of the accommodation with the landlady in portion A of property House No.E-119, Kalkaji, New Delhi consists of very small rooms having asbestos roof. This type of accommodation cannot be said to be a reasonably suitable residential accommodation. Moreover, the accommodation is not sufficient for the needs of family consisting of husband, wife and their four grown up offspring, out of whom the eldest son has been married during the pendency of the proceedings. The accommodation available with the respondent landlady in House No.E-119, Kalkaji, New Delhi in portion A is neither sufficient nor suitable for the needs of the family of the landlady. Such a large family requires at least one drawing and dining room besides separate rooms for husband/wife and for their three grown up sons and a daughter. The husband of the landlady who is a practicing advocate also needs a separate room for his office as an advocate.

(9) In these facts I am unable to find any fault with the impugned judgment of the Addl. Rent Controller dated 2nd November 1993. This revision petition is dismissed leaving the parties to bear their own costs.