P.N. Chopra And Anr. vs Sharda Devi 2 Ors.
1995 Latest Caselaw 905 Del

JUDGMENT

Arun Kumar, J.

(1) The appellant filed the present eviction petition in August 1977against two respondents,nainely,Sharda Devi and Ms. Ranjita Shalini for their eviction from the suit premises comprising of ground floor of House No. 122, Golf Links, New Delhi on the grounds contained under Clauses (b) and (d) of proviso to Sub-section (1) of Section 14 of the Delhi Rent Control Act (hereinafter referred to as the Act). Ground (b) relates to sub-letting while ground (d) relates to residential premises not being occupied by the tenant or any member of his family for a period nf six months immediately before the date of filing of the eviction petition.

(2) According to the appellants one Mahadevan was the tenant in the premises. His tenancy had been duly terminated through a notice dated 27th February, 1968 served on him on 1st March 1968. After the service of the said notice an eviction petition had been filed by the appellants herein against Mahadevan alleging that he had sub-let the premises to Sharda Devi. During the pendency of the said eviction petition, Mahadevan married Sharda Devi and the said eviction petition failed. The service of notice of termination of tenancy on Mahadevan was admitted in the written statement filed in the said eviction petition. Mahadevan died on 17th August, 1976 leaving behind Sharda Devi, his widow. In fact Sharda Devi was the only heir of Mahadevan. The appellant/landlord served another notice dated 12th April, 1977 upon Sharda Devi terminating her tenancy. The receipt of this notice was also not disputed. The present eviction petition was filed in August 1977. It was pleaded by the landlord that Mahadevan died on 17th August 1976 leaving behind only his widow Sharda Devi who at the time of death of Mahadevan was not financially dependent upon him. She was an earning hand and continued to be an earning hand, therefore, as pleaded in the eviction petition Sharda Devi was not entitled to continue to remain in occupation of the house after expiry of period of one year from the date of death of Mahadevan. On the date of institution of the eviction petition the period of one year had expired as stated in the eviction petition itself. Further it was pleaded that the premises was let out for residential purpose and neither respondent No. 1 Sharda Devi nor any member of her family had been residing therein since the end of January, 1977. Sharda Devi had gone abroad and remained abroad during all this period. This plea was for purposes of Clause (d) of Section 14(1) of the Act. The plea regarding sub-letting was raised on the basis of allegation that Sharda Devi had sub-let, assigned and/or parted with possession of the premises to respondent No. 2 without obtaining the consent of the landlord in writing. It may be mentioned here that respondent No. 2 is a daughter of Sharda Devi from her previous husband. Therefore, respondent No. 2 is not an heir of Mahadevan, the original tenant. The respondents contested the eviction petition denying the material allegations contained in the eviction petition. No dispute, however, was raised about the facts that the premises are residential, about the rate of rent, about service of notices etc. On merits it was stated by the respondents that Sharda Devi was not financially independent at the time of death of Mahadevan. It was stated that respondent No. 2 being the daughter of Sharda Devi from her previous marriage was entitled to reside in the house as a family member Along with Sharda Devi, even though Sharda Devi had gone abroad for treatment purposes. Respondent No. 2 always continued to occupy the premises and reside therein at the relevant time. On the same basis the allegation of sub-letting, assigning or parting with possession of the premises was denied. The Add). Rent Controller held that the landlord had failed to prove that Sharda Devi was not financially dependent on Mahadevan at the time of his death. He further held th it the grounds under Clauses (b) and (d) of the Act were not made out since respondent No. 2 being daughter of Sharda Devi from her previous marriage, was a member of her family. Therefore, the eviction petition was dismissed vide judgment dated 2nd November, 1982.

(3) The landlord challenged the said judgment by way of an appeal before the Rent Control Tribunal. The landlord's appeal was dismissed by the Rent Control Tribunal on 28th October 1983 holding that Sharda Devi was financially independent from Mahadevan at the time of Mahadevan's death. To this extent the judgment of Addl. Rent Controller was reversed and a finding was given in favor of the appellant as per the plea raised by the appellant in the eviction petition. On this basis the Tribunal further held that the eviction petition itself was not maintainable. The right of Sharda Devi to inherit the tenancy is governed by the provisions of Section 2(l) of the Act according to which if the widow is not financially dependent on the deceased tenant she got a limited right of inheritance of tenancy for a period of one year from the date of death of the tenant. Having found that the widow Sharda Devi was not financially independent on Mahadevan it was held that on the date of institution of the eviction petition period of one year from the date of death of Mahadevan had expired and, therefore, the right of Sharda Devi to enjoy the tenancy had come to an end before the eviction petition was filed. There was no relationship of land lord and tenant at the time of institution of the eviction petition. In these circumstances it was held that the Controller had no jurisdiction to entertain the petition.

(4) On the other hand two grounds on merits, i.e. grounds as per Clause (b) and (d) of Section 14(1) of the Act, the findings of the Addl. Rent Controller were maintained and it was held that the landlord had failed to make out a case as per the provisions contained in the said clauses of Section 14(1) of the Act. The landlord has filed the present second appeal against the judgment of the Tribunal dated 28th October, 1983.

(5) During the pendency of present appeal Sharda Devi died on 3rd August, 1995. The findings of authorities below on the question of desertion of the premises, i.e. non-occupation of the premises for a period of six months immediately before institution of the eviction petition and sub-letting, assigning and/or parting with possession are findings of fact and I do not consider that any case is made out before this Court for interference therewith in this second appeal under Section 39 of the Act as it stood. Section 39 permitted a second appeal only on substantial questions of law. The finding on the issues referred to hereinbefore in the present case are purely findings of fact which are really based on the fact that respondent No. 2, though not an heir of Mahadevan, was very much a member of the family of Sharda Devi, at the relevant time being her unmarried daughter from her previous marriage. If in the absence of Sharda Devi from the suit premises respondent No. 2 continued to occupy the same, the ground under Clause (d) will not be available. Likewise the ground of sub-letting, assigning or parting with possession is not available in case of a family member. Therefore, these Findings have been rightly not seriously challenged before this Court by the learned Counsel for the appellants.

(6) The main point of controversy between the paretics in the present appeal is regarding maintainability of the eviction petition. According to the learned Counsel for the respondents as per the landlord's own case the tenancy of Mahadevan had been terminated before his death, therefore, he became a statutory tenant. Further the landlord himself pleaded in the eviction petition that Sharda Devi, Mahadevan's widow was not financially dependent on him at the time of his death. Mahadevan died on 17th August, 1976. The eviction petition is dated 26th August 1977 and must have been filed on that date or soon thereafter. This means that on the date of institution of the eviction petition the period of one year from the date of death of Mahadevan had already expired. These are admitted facts.

(7) On the basis of the said admitted facts we have to turn to provisions of the Delhi Rent Control Act, 1958. The Act comes into play only in cases where there is a relationship of landlord and tenant between the parties. The fact that the appellant is the landlord of the premises is not in dispute. Then only thing which is necessary to be seen is whether respondent No. I, namely, Sharda Devi was a tenant within the meaning of the statute on the date of institution of the eviction petition. For purposes of present discussion Section 3 of the Act is not attracted and, therefore, the exceptions contained in Section 3 of the Act need not be referred to Sub-section (1) of Section 2 defines the word 'tenant' :- 2. (1) "tenant" means any person by whom or on whose account or behalf the rent of any premises is or, but for a special contract, would be, payable, and includes - , (i) a sub-tenant (ii) any person continuing in possession after the termination of the tenancy; (iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and conditions specified respectively, in Explanation I and Explanation Ii to this clause, such of the aforesaid person's - (a) spouse (b) son or daughter,, or, where there are both son and daughter, both of them-. (e) parents. (d) daughter-in-law, being the widow of his pro-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include- (A) x xx xx (B) x xx xx Explanationi.-The order of succession in the event of the death of the person continued in possession after the termination of his tenancy shall be as follows:- (a) firstly, his surviving spouse; (b) secondly, his son or daughter, or both, if there is no surviving spouse, or it the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death; (e) xx xx xx Explanation II.-If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished. Explanation ill.-xx xx

(8) From Explanation Ii it is clear that if the widow was not financially dependent on the deceased statutory tenant at the time of his death she would get a right of inheritance of the statutory tenancy of her deceased husband for a limited period of one year from his death. Thus on the date of institution of the eviction petition a period of one year had already expired from the date of death of Mahadevan. Sharda Devi his widow was, as per (he case of the appellant himself and as held by the Court below, not financially dependent on Mahadevan at the time of his death. Therefore, on the date of institution of the eviction petition she ceased to be a tenant. From this it would follow that when the relationship of landlord and tenant had come to an end, no eviction petition could have been filed against Sharda Devi, respondent No. 1. The Controller had no jurisdiction to deal with the eviction petition. Respondent No. 2 was imploded only on the allegation of unauthorised sub-letting. Therefore, her presence as a respondent in the eviction petition won Id not make any difference so faras this aspect of the case is concerned.

(9) Learned Counsel for the respondent relied on the following decisions of this Court in support of his submissions that the eviction petition was not maintainable in the facts of the present case-Mohan Lal v. SinKrishan, ; and Krishna Prakash & Ors. v. Shanta Sinha Chinoy &Anr.,ILR (1980) Ii Delhi 854.

 (10) In Mohan Lal's case, in a civil suit for possession the defense raised by the heirs of deceased tenant was that the suit was barred in view of provisions of Section 50 of the Delhi Rent Control Act which bars the jurisdiction of Civil Court in cases where the provisions of the Rent Act apply. This Court observed :-    "IT cannot be disputed that the Rent Controller has no jurisdiction to decide a claim for possession made on the ground that the defendant is in unlawful possession. The jurisdiction of the Controller is to order eviction if the landlord is able to bring his case within one of the grounds specified in the proviso to Section 14(1) of the Act and is able to show that the ban on his right to evict the tenant should be lifted as the tenant has violated one or more of the statutory grounds enumerated in Section 14."  

 (11) . The following observations of the Division Bench of this Court in Krishna Prakash (supra) are worth noting ;-    "ON the other hand, if the landlord avers that the particular heir of the deceased tenant who is continuing in possession after the death of the tenant was not ordinarily living in the premises with the tenant as a member of his family up to the time of the death of the tenant and/or was not financially dependent on the deceased tenant on the date of the death of the tenant then such a successor under Explanation Ii to Section 2(l) acquired a right to continue in possession of the demised premises only for a period of one year and on the expiry of that period or on his death whichever is earlier the right of such a successor to continue in possession becomes extinguished. On the averment of such facts, there would be no relationship of landlord and tenant between the owner of the premises and a person who is in unlawful possession of the premises because he has not inherited the tenancy or the statutory protection of the deceased tenant. The proceeding for the eviction of such a person would be proceeding for the eviction of a trespasser. The Forum for eviction would, therefore, be a Civil Court and a suit for possession on the ground of title against a trespasser would have to be filed by the landlord on these facts. Such a proceeding would not be under the Act but would be outside it. It is true that for success of such a suit the landlord would have to prove the facts showing that the person in possession is not entitled to the tenancy of the statutory protection which could be inherited from the tenant in terms of the amended definition of tenant in Section 2(1) of the Act. But the decision of the averments made by the landlord would have to be by the Civil Court because the averments amounted to saying that the person to be affected is not a tenant at all."  

 Again it was observed :-    "BUTwhen, on the other hand, right from the inception the landlord's case is that he is seeking to evict a person who is not a tenant at all, the proceeding for eviction will have to be a suit based on title and filed in Civil Court. When the very basis of such a suit is the total absence of any relationship of landlord and tenant, no question can arise of the termination of tenancy by the order of eviction. The decree for possession which is passed by the Civil Court is not based on the termination of the landlord and tenant relationship. It is based on the finding that the premises belonged to the landlady and the defendant against whom a decree for possession is based have no right to stay in possession because they have no title to the premises in such a suit. The success of the suit is based on the very finding that the person against whom the decree is passed is not entitled to the benefit of inheriting the tenancy or the statutory protection of the deceased tenant."  

(12) On the other hand the learned Counsel for the appellant mainly placed reliance on judgments which are given in the context of the fact that during the pendency of eviction proceedings the tenant dies and his/her legal representatives are brought on record. In some of the cases even though the legal representatives did not inherit the tenancy rights, eviction order was passed mainly on the reasoning that the legal representatives who were brought on record, represented the estate of the deceased and, therefore, it would be unfair to drive the landlord to another round of litigation by asking him to file a civil suit for possession. In Gian Devi v. Jiwan Kumar, 1980 Rlr 28, the statutory tenant died during the pendency of the eviction procedings. It was held that eviction order could be passed against the legal representatives of the deceased tenant who were brought on record. This judgment further contained an observation that jurisdiction normally is determined from the facts at inception of the tenancy. In the case in hand, right from the inception of the tenancy the Controller had no jurisdiction because on the date of institution of the eviction petition itself as per the averments contained in the eviction petition by the landlord Sharda Devi had ceased to be a tenant.

(13) J.C.CHATTERJEE v. Sri Krishan Tandon. also relied upon by the learned Counsel for the appellants was a case of death of statutory tenant during the pendency of appeal. Similar was the situation in Bat Kishan v. 0m Prakash, . The tenant died during the pendency of the eviction proceedings and his son was brought on record as his legal representative. The question for determination was whether in the circumstances the Rent Controller had lost his jurisdiction to try the case before him. The legal representative of the deceased tenant raised the plea that he was holding the property as a trespasser and, therefore, the Controller had no jurisdiction to pass any order or grant any relief to the petitioner. It was held that the plea of the legal representative of the tenant that he was holding the property as a trespasser was not tenable because the possession of the tenant being permissive, the possession of his legal representative who had succeeded the estate as his heir could not be that of a trespasser in the facts of the case. He could not, therefore, resist the passing of the decree for eviction on proof of the ground of eviction.

(14) Thus the reasoning on which these cases relied upon by the learned Counsel for the appellants are based cannot be applied in the facts of the present case. These cases are clearly distinguishable. The present is a case in which on the date of institution of the eviction petition the relationship of landlord and tenant had ceased to exist. Thus the finding of the Tribunal that the eviction petition was not maintainable in the present case and that the Controller had no jurisdiction to entertain the same is perfectly justified and I have no reason to interfere therewith. Before concluding I may note that though the question of maintainability of eviction petition in the present case goes to the root of the matter and is by itself sufficient to non-suit the appellant, on merits also the findings of the authorities below on the grounds pleaded by the landlord in the eviction case are unassailable. The eviction petition is liable to be dismissed in any event. This appeal is accordingly dismissed leaving the parties to bear their respective costs.