Mohan Lal Duggal vs Mr. Inder Mohan Sharma
1999 Latest Caselaw 779 Del

ORDER

Vijender Jain, J.

1. Aggrieved by an order by the Additional Rent Controller whereby an eviction order was passed against the petitioner on 24th April, 1989 under Section 14(1)(e) of the Delhi Rent Control Act, the petitioner has filed the present civil revision petition.

2. Mr. Duggal, learned counsel for the petitioner, at the outset, con-tended that the petitioner has nowhere pleaded in the eviction petition that he was the owner of the premises in question . In support of his contention he has cited Tirath Ram Chopra and Another Syed And Company and Others Vs. State of Jammu & Kashmir and Others 1995 Supp (4) SCC 422 Mr. Duggal has further contended that as a matter of fact when there was no pleading as regard to ownership of the premises in question, no evidence beyond that pleading ought to have been allowed by the Additional Rent Controller and petition was liable to be dismissed in this score.

3. It has been vehemently contended before me that the writing in the hand of father of the respondent dated 16th August, 1963 was a Partition Deed which necessarily required registration under Section 17 of the Registration Act. Learned counsel for the petitioner relied upon Roshan Singh and Others Vs. Zile Singh and Others AIR 1988 SC 881. Learned counsel for the petitioner further contended that in any event of the matter, the said partition was sham in the eyes of law. He further contended that respondent has never let out the premises to the petitioner and the respondent was not his landlord. In support of his contention he has cited Devi Das Vs. Mohan Lal AIR 1982 SWC 1213 and S.K. Sattar Sk. Mohd. Choudhari Vs. Gundappa Amabadas Bukate .

4. Yet another contention which was urged before me by the learned counsel for the petitioner was that no mutation has taken place in any of the department in cross examination of the respondent and his deposition before the Additional Rent Controller respondent has admitted that no mutation has taken place and, therefore, challenged the writing dated 16.8.1963 as a document created for ulterior motives. Lastly, learned counsel for the petitioner has contended that Relinquishment Deed was signed and executed by the minor, the same can not be admissible in evidence.

5. On the other hand, Mr. Makhija, learned counsel for the respondent has contended that when the Relinquishment Deed was signed on 16th August, 1963 the respondent was a major. He was serving in the Indian Army as Lieutenant. Mr. Makhija has further contended that the partition has been acted upon by the respondent and has invited the attention of this Court to a notice sent by the father of the respondent on 22nd July, 1976 through a counsel. The same was received by the petitioner who sent the reply on 14th August, 1976. Controverting the argument of learned counsel for the petitioner, Mr. Makhija has contended that from the reading of the petition as a whole, it can not be said that the omission of word 'owner' would be so fatal as to result in non-suiting the respondent. He has further contended that eviction petition if read in conjunction with replication filed by the respondent would show that respondent has pleaded that he was the owner of the premises in question. In support of his submission, learned counsel for the respondent has cited Raj Rani Vs. Gian Chand 1986 RLR 284. With regard to the writing dated 16th August, 1963 Mr. Makhija has contended that the same was merely a memorandum of settlement. This document did not demarcate the shares of the parties and, therefore, it did not require registration and also relied upon Roshan Lal and Others Vs. Zile Singh AIR 1988 SC 881. Lastly, Mr. Makhija has contended that the respondent is a retired Army Colonel. He needs the accommodation bonafidely. It is more than ten years since the eviction order was passed in his favour. Now he has a grown up son who is a Major in the Army. He is also married. Although he is posted presently outside Delhi but he keeps on visiting his parents. Rooms available with the respondent is only 10"x12", 10"x11". In addition to drawing room cum dining room of the size of 10"x20", thus the total covered area is 450 sq feet.

6. Mr. Makhija has contended that even otherwise respondent is residing in the portion which had fallen in the share of his brother Jawahar Lal Sharma as per the family partition.

7. I have given my careful consideration to arguments advanced by counsel for both the parties. In the eviction petition, it has been averred by the respondent: "It has since been partitioned amongst the joint family members. In the partition memo executed by petitioner's father in the year 1976, he has given first floor portion of the subject house to the petitioner in inheretence". At page 111 of the Trial Court in the replication, the petitioner has stated as follows:-

"The House at B-70, New Rajinder Nagar, New Delhi is a joint property of Sh. Amar Nath Sharma, petitioner's father who has divided it among himself and his sons as per Memo of Family Partition executed by him with full consent and of his free will and accord. The document of partition is a Valid document. The petitioner has been and is joint owner of the property and on its partition his share is restricted to first floor of the premises."

8. Taking into consideration, the averment made in the eviction petition can it be said that the word 'owner' if not pleaded is so fatal as to non-suit the petitioner. The answer is in the negative. In somewhat similar circumstances when petitioner has not pleaded the word 'residential accommodation, in Parvesh Kant Vs. Vijay Kumar CR 990/98 date of decision 27th July, 1999 this Court took the same view.

9. Now, let me examine the controversy and effect of writing in hand of Lt. Amar Nath Sharma in a copy book which it seems he used to maintain dated 16th August, 1963:-

'The property No. B-70 New Rajinder Nagar, New Delhi which is a joint family property purchased and built with joint family funds belongs to the following members of the Joint Hindu Family:-

1. Sh. Amar Nath Sharma s/o Late Sh. Hari Ram.

2. Smt. Agya wanti w/o Amar Nath Sharma.

3. Lt. Inder Mohan Sharma s/o Sh. Amar Nath Sharma.

4. Sh. Surinder Kumar Sharma s/o Sh. Amar Nath Sharma.

5. Sh. Rajinder Prasad Sharma s/o Sh. Amar Nath Sharma, born on 1.1.1949 (minor).

6. Sh. Jawahar Lal Sharma s/o Sh. Amar Nath Sharma born on 1.4.1951 (minor).

The above said members have agreed to the following partition of the said property so that each member may be able to look after and maintain his property effectively. The share of each member has been shown against his name:-

I. (i) Sh. Amar Nath Sharma s/o Sh. Hari Ram (karta);

(ii) Smt. Agya Wanti w/o Sh. Amar Nath Sharma;

(iii) Sh. Jawahar Lal Sharma s/o Sh. Amar Nath Sharma Ground Floor.

II. (i) Lt. Inder Mohan Sharma s/o Sh. Amar Nath Sharma First Floor;

(ii) Sh. Rajinder Prasad Sharma s/o Sh. Amar Nath Sharma.

III. (i) Sh. Surinder Kumar Sharma s/o Sh. Arma Nath Sharma, Barsati Floor.

The flight of the stairs on the back side of the house will be commonly used by Lt. Inder Mohan Sharma, Rajinder Prasad Sharma and Surinder Kumar Sharma who shall be responsible to maintain the staircase at their cost and shared equally amongst them.

In witness of Sh. Jagdish Chander s/o Sh. Bua Ditta Mal Sharma, retired Headmaster.

sd/-

(1) Amar Nath Sharma (16.8.63)

(Father and natural guardian of his minor sons Surinder Kumar Sharma, Rajinder Prasad Sharma, Jawahar Lal Sharma) Witness sd/-

     Jagdish Chander     (2)  sd/- 
                    Agya Wanti
     16.8.63.
     16.8.63        (3)  sd/-
               Lt. Inder Mohan Sharma                                                         (16.8.63)

 
 

10. From the bare perusal of the aforesaid writing can it be said that it is by this Deed that the respective shares of the parties have been created? As learned counsel for both the parties have relied upon Roshan Singh and Others (supra), it would not be out of place to reproduce the document Ex. P-12 appearing in para 7 of the Roshan Singh's case (supra).

"Today after discussion it has been mutually agreed and decided that house rihaishi (residential) and the area towards its west of rihaishi (residential) house has come to the share of Chaudhary Pooran Singh Jaildar.

2. House Baithak has come to the share of Chaudhary Soonda. The shortage in area as compared to the house rihaish and the open area referred to will be made good to Chaudhary Soonda from the field and gitwar in the eastern side.

3. Rest of the area of the field and gitwar will be half and half of each of co-shares. The area towards west will be given to Chaudhary Pooran Singh and towards east will be given to Chaudhary Soonda.

4. Since house rihaishi has come to the share of Chaudhary Pooran Singh therefore he will pay Rs. 3000/- to Chaudhary Soon- da.

5. A copy of this agreement has been given to each of the co- shares.

      sd/- in Hindi Pooran Singh Zaildar      D/- 3.8.1955
     LTI
     Ch. Soonda"
 
 

11. From the perusal of the agreement recorded on 16th August, 1963, it cannot be said that the said instrument constitutes swearing ownership and caused change of legal relation to the property which is to be divided in terms of that instrument. At best same can be a memorandum of settlement between family members recorded on 16.8.1963. Applying to law laid down in Roshan Lal's case (supra), the document was merely a memorandum of settlement, as rightly recorded by the Additional Rent Controller and did not require registration.

12. Keeping in view the requirement of the respondent, he has retired from the Armed Forces as Colonel. The petitioner was induced in the year 1976 much after the coming into operation of the Relinquishment Deed or the memorandum of settlement, from the documents referred above it cannot be said that the said memorandum of settlement has not been acted upon by the respondent. Respondent is residing in the portion which fell in the share of his brother, his desire to live in his own portion in the said house can not be said to be unreasonable or malafide.

13. I do not see any infirmity with the order of the Additional Rent Controller.

14. The petition is dismissed, however, two months' time is granted to the petitioner to vacate the premises.