Sh. Amit Gupta & Ors. vs Sh.Dwarka Nath @ Mast Ram Through ...
2011 Latest Caselaw 2427 Del

*                  IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               C.R.P No.969/2001


%                           Date of Decision: 06.05.2011


Sh. Amit Gupta & Ors.                              .... Petitioners

                  Through         Mr. Sheetesh Khanna, Advocate.


                               Versus


Sh.Dwarka Nath @ Mast Ram Through his .... Respondents
LRs & Ors.

                  Through         Mr. Anuj Gupta,      Advocate      for    the
                                  respondent No. 2



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.        Whether reporters of Local papers may              YES
          be allowed to see the judgment?
2.        To be referred to the reporter or not?             YES
3.        Whether the judgment should be                     YES
          reported in the Digest?


ANIL KUMAR, J.

*

1. The petitioners, the alleged unauthorized sub-tenants have filed

the above noted revision petition, challenging the order of eviction

passed in respect of suit premises No. 1271(Old No. 442), Vakilpura,

Bazaar Guliyan, Near Daribakalan, Delhi under Section 14(1)(e) read

with Section 25(B) of the Delhi Rent Control Act, 1958 in Eviction

Petition bearing No. E-57/1994 titled as „Sh. Dwarka Nath and Anr. Vs.

Smt. Angoori Devi & Ors.,‟ , wherein by order dated 3rd March, 2001 the

Additional Rent Controller allowed the eviction petition and directed the

petitioners to vacate the premises within six months.

2. The brief facts to comprehend the dispute between the parties are

that, an eviction petition bearing No.E-57 of 1994 was filed under

Section 14(1)(e) read with Section 25 B of Delhi Rent Control Act, 1958.

The petitioners, Dwarka Nath and Mahinder Nath, filed the eviction

petition contending that Smt. Angoori Devi, Smt. Veena Gupta,

Smt.Bimla Gupta, Master Amit Gupta, Kumari Monika Gupta, Kumari

Daisy Gupta, Smt.Usha Gupta, Smt.Nisha Gupta and Smt.Niti Gupta

were the tenants and Shri Dhruv Kumar Gupta, Shri Dushyant Gupta,

Smt.Vidyawati Jain, Shri Virender Kumar Jain, Shri Jagdish Narain

and Smt.Kanta Devi were the unauthorized sub tenants.

3. According to the landlords/owners, the premises were let out for

residential purposes at the rate of Rs.168/- per month comprising of

one dallan, two rooms, four stores, two kitchens and one bathroom on

the ground floor; four rooms, three stores, three bathrooms, two

kitchens and one puja room on the first floor and three rooms, one

kitchen, one store and one verandah on the second floor and the entire

basement.

4. The premises were let out to Sh. Sri Kishan Dass and after his

demise his legal representatives became the tenants as detailed

hereinabove. The landlord contended that the tenancy of late Sh. Sri

Kishan Dass had been terminated during his life time, however, the

copy of the notice was not traceable. While the legal representatives of

Sh. Sri Kishan Dass were residing in a portion of the property as the

tenants, the other portion of the property was in the occupation of the

unauthorized occupants/sub-tenants.

5. According to the petitioners/landlords, the premises were let out

for residential purposes by Smt.Sona Devi to Sh. Sri Kishan Dass at a

monthly rent of Rs.115/- and a rent note dated 29th November, 1943

was executed. It was also asserted that the different portions of the

demised premises had been further sublet to the respondents 10 to 15

(of the eviction petition) without permission in writing or otherwise and

an eviction petition on the ground of subletting has also been filed

against the unauthorized sub tenants after obtaining permission under

Section 19 of Slum Areas (Improvement and Clearance) Act, 1956.

6. Regarding the ownership of the property, the landlords contended

that the property was owned by Sh. Jagannath and by a family

settlement dated 29th August, 1938 the property in dispute came to the

share of Smt.Sona Devi, mother of the landlords, who thereby had

become the absolute owner. Apart from the respondents Smt. Sona Devi

had a son named Sri Onkar Nath, and three daughters named Smt.

Shanti Devi, Smt. Radha Rani & Smt. Jamuna Devi. Smt.Sona Devi

died in 1964 and Shri Onkar Nath, her son died on 18th June, 1992 as

a bachelor leaving behind no legal heirs. Shri Mahender Nath had also

filed a civil suit No. 44/80 for partition of the suit property and the suit

premises had come to the share of Shri Onkar Nath and the three

sisters of Shri Dwarka Nath and Mahender Nath. Thereafter the sisters

had relinquished their rights in the property by a deed dated 4th

August, 1992 in favor of the landlords/respondents.

7. Regarding the aspect of the purpose of letting, the landlords had

contended that in the rent note dated 29th November, 1943, the purpose

of letting was mentioned as "Waste Sakoonat", i.e., for residence. It is

also contended that the entire property is residential.

8. The tenants and sub-tenants had contested the eviction petition

on the ground that Shri Mahender Nath and Shri Dwarka Nath were

neither the owners nor the landlords of the suit premises. The plea was

also taken that the eviction petition without obtaining the permission

from the competent authority, Slum, was not maintainable. Regarding

the sub tenants, it was pleaded that they were in occupation of different

portions since before 1952 and the site plan filed was not correct.

Regarding the sub tenancy created by Sh. Sri Kishan Dass, it was

contended that the property was let out 53 years back and he was

authorized to let out the various portions of the suit property.

Regarding the purpose of letting, it was contended that the premises

were let out for residential-cum-commercial purpose and is also being

used for the same purpose as of now. The tenants denied the validity of

the rent note dated 29th November, 1943 and family settlements dated

29th August, 1938 and 14th July, 1981. A specific assertion was made

that the different portions were let out by late Sh. Sri Kishan Dass prior

to 9th June, 1952 and therefore the respondents No.10 to 15 (of the

eviction petition) are lawful sub tenants. Relinquishment of the rights

in the suit property by the sisters of Shri Dwarka Nath and Mahender

Nath by relinquishment deed dated 4th August, 1992 was also denied.

9. Regarding the aspect of bonafide requirement as argued by the

landlords and their family members, dependent upon them, it was

alleged that the eldest son of Shri Dwarka Nath is living separately and

he is also having separate business and mess. Regarding the

accommodation with Shri Mahender Nath, it is contended that he has

eight rooms, four stores, barsati room on the top floor and two

bathrooms and a kitchen besides shops in his house and therefore the

accommodation available with him is more than sufficient and suitable

for him. The alleged unauthorized sub tenants also contested the

eviction petition on the ground of bonafide requirement on similar pleas

as were raised by the tenants. It was rather contended that the

landlords want to let out the premises at enhanced rates after getting

huge pagree, or to sell the same for a huge amount. The alleged

unauthorized sub tenants also pleaded that the late Sri Kishan Das had

inducted Shri Radhey Shyam in a portion of the property comprising of

a basement, two rooms, two kottas, kitchen, bathroom and latrine with

another deceased Sh. Nand Kishore in the courtyard, common passage,

dehliz on the ground floor and use of the top floor at a rent of Rs.28.50

paisa who died in the year 1990 and thereafter the above noted

respondents No.10 to 15 became the sub-tenants under Smt.Angoori

Devi and others on the same terms and conditions at the rate of

Rs.23.50 paisa.

10. Bonafide requirement of the landlords was also challenged on the

ground that Shri Dwarka Nath had alternative accommodations at

property No.982, Chhota Chhipiwara, Chawri Bazar, Delhi which is a

residential property, and at property No.3865, Charkhewalan, Delhi-

110006, which were not disclosed by him. Another accommodation at

6/2753, Chuna Mandi, Pahar Ganj, Delhi-5 was also alleged to be the

property of Shri Dwarka Nath.

11. During the trial, the landlords, Dwarka Nath and Mahender Nath,

proved the rent note as Exhibit AW1/1 and relinquishment deed dated

4th August, 1992 executed by Smt.Jamuna Devi, Smt.Shanti Devi and

Smt.Radha Rani as Exhibit AW1/2 to Exhibit AW1/4. The counter foils

of rent receipts were proved as Exhibit AW1/5 to Exhibit AW1/11. The

site plan was proved as Exhibit AW1/5. The landlords also proved the

ration cards as Ex. AW1/17and the site plan of the property No.3865

was proved as Ex AW1/18 and the site plan of property No.2753/6,

Chuna Mandi, Pahar Ganj, Delhi-5, where the son of Shri Dwarka Nath,

Shri Vishwanath, was residing was proved as Ex AW1/19. Shri

Mahender Nath, the landlord, had also appeared as AW3, Sh. M.K. Garg

AFD Sr. Clerk DVB was examined as AW4. While the

tenants/petitioners examined Smt. Bimla Devi as RW1 and Sh. Jai

Kishan as RW2.

12. The Additional Rent Controller after considering the pleas and

contentions of both the parties, allowed the eviction petition by order

dated 3rd March, 2001 under Section 14(1)(e) read with Section 25 B of

Delhi Rent Control Act, 1958 holding inter alia that since Section 2 (l)

defines „tenants‟ which includes sub tenants, therefore, the order of

eviction on the ground of bonafide requirement shall be binding on all

persons who are in occupation of the premises. The Additional Rent

Controller also held after considering the testimonies of the parties and

the documents, relying on the rent note, Exhibit AW1/1, that the

purpose of letting was residential and that the respondents had failed to

establish that the premises were let out for residential-cum-commercial

purpose. On the basis of the rent note describing Smt.Sona Devi as the

owner, the learned Additional Rent Controller also held that the

landlords have been able to establish that they are the owners of the

property. The Additional Rent Controller also rejected the pleas of the

respondents/tenants contending that the petition was barred under

Section 14(6) of Delhi Rent Control Act on the ground that the landlord

had acquired the premises in 1992 and filed the petition on 28th

February, 1994 before the expiry of five years. The Additional Rent

Controller had held that Shri Dwarka Nath and Mahender Nath had

acquired the property as co-owners and, therefore, it could not be held

that they acquired the property only in the year 1992 on the death of

Shri Onkar Nath and thus held that Sh. Dwarka Nath and Sh.

Mahender Nath are the co-owners and that the petition is not barred

under section 14 (6) of Delhi Rent Control Act,1958.

13. The petitioners/tenants have challenged the order of eviction

passed against them inter-alia on the grounds that the

respondents/landlords have not pleaded their bonafide requirement as

contemplated under Section 14(1)(e) of Delhi Rent Control Act, 1958.

According to the petitioners, the respondents have not specifically

pleaded as to how much accommodation is required by them. It was

also pointed out that the dependants of the landlords have not

expressed their desire to live with their parents, as the sons of the

respondents have even filed civil suits against them regarding partition

of the premises. In the circumstances, the wish of the landlord to live

with his son cannot be termed to be bonafide.

14. The petitioners have challenged the plea of bonafide requirement

of respondents on the ground that they are not the sole owners of the

premises. According to the petitioners the premises where the demised

property is situated had been partitioned. This fact was asserted by the

petitioners on the basis of an additional affidavit dated 30th June, 2007

disclosing that recently before filing the additional affidavit dated 30th

June, 2007 they came to know that Sh.Dwarka Nath and Mahender

Nath had partitioned the property among themselves and that they had

even executed a partition deed. The petitioners also produced a copy of

the partition deed dated 7th April, 1993, however, they did not produce

a copy of the plan filed along with the partition deed showing the areas

which had fallen in the respective shares of Mahender Nath and

Dwarka Nath pursuant to the partition. The petitioners also asserted

that late Sh. Dwarka Nath and his son Deepak Kumar after his demise

have concealed the fact that Sh. Deepak Kumar had filed a suit for

partition in respect to the property in dispute against Late Sh. Dwarka

Nath and his wife Usha Rani and his other two sons namely

Vishwanath and Rajneesh Kumar. The petitioners contended that even

an allegation was made by Sh.Deepak Kumar that late Sh. Dwarka

Nath was trying to sell the property in collusion with his son Rajneesh

Kumar. The petitioners by additional affidavit also deposed that the wife

of Sh.Dwarka Nath was murdered and an FIR under Section 302 of

Indian Penal Code was also registered against Mr.Rajneesh Kumar the

youngest son of late Sh. Dwarka Nath, for which he has been arrested

and a case is pending against him. In the circumstances, it has been

pleaded that the requirement of the respondents is malafide and cannot

be termed to be bonafide and in any case they have failed to establish

that they are the owners. It was also asserted that the concealment of

the fact regarding the partition in itself is sufficient to dismiss the

eviction against the petitioners.

15. The petitioners have also contested the eviction petition on the

ground that the eviction is sought in respect of a part of the tenancy

premises and consequently the eviction order could not be passed for

the portion of the property which was not demised to the tenant. In

support of this plea the petitioners have alleged that the petitioners

themselves have stipulated in the eviction petition that the basement

was not a part of the tenancy premises, however, the learned Additional

Rent Controller has passed the eviction order in respect of the basement

also and thus has committed grave material illegality.

16. The petitioners further contended that concealment of the

particulars of other properties owned by the landlords/respondents has

also been made. According to the petitioners the properties 982, Chawri

Bazar, Delhi-110006, 2707, Churi Walan, Delhi-110006 and 2753/6,

Chuna Mandi, Paharganj, New Delhi-110005 are allegedly owned by

Sh.Dwarka Nath. Reliance for this is made on the will dated 15th

November, 2002 by Sh.Dwarka Nath and in the circumstances it is

contended that the respondents have suitable alternative

accommodation available to them and therefore the ground for bonafide

requirement is not made out, hence they cannot seek eviction of the

petitioners from the demised premises . In support of their submissions

the learned counsel for the petitioners has relied on O.P.Gupta v.

R.K.Sharma, 90 (2001) DLT 276 and S.K. Dey Vs. D.C. Gagerna, 26

(1984) DLT 438.

17. In O.P.Gupta (supra) it was held that in case necessary and

relevant facts are concealed, the opposite party would not be entitled to

any relief. In this case the mother of the petitioner had expired before

the eviction petition was filed however, this fact was not disclosed by

him, nor he disclosed that he is one of the co-owner of the another

property situated at Delhi. This was construed as serious concealment

of necessary and relevant facts and the Additional Rent Controller had

dismissed the eviction petition. While in S.K.Dey v. D.C.Gagerna, 26

(1984) DLT 438, a Division Bench of this Court had held that

dependency cannot be stretched to include the need of any other

member of the family simply because he needs accommodation, when

he is not dependent on the owner of the house. To stretch the

interpretation of the meaning to be given to the word 'dependent' in

such a manner would make the second part of the clause otiose

because this would mean that if any relation of the owner, even if totally

independent financially would be covered within the meaning

dependent on the facile reasoning that as he is in need of

accommodation he should be deemed to be dependent for that purpose

on the landlord. The interpretation is against the plain meaning of the

clause and against the very purpose, is and would run counter to the

meaning of dependent accepted by this Court, and cannot be accepted.

18. In order to buttress the point that the respondents have suitable

and sufficient accommodation it is also asserted that another tenant

namely Sh.Ramesh Chand occupying property No.1271A, owned by

Sh.Mahender Nath was evicted and consequently the respondent No.2

Sh.Mahender Nath is in possession of the entire property No.1271A

consisting of 3½ storeys and, consequently, the bonafide need of the

respondent No.2 does not survive.

19. Invoking Section 14(6) of Delhi Rent Control Act, it was asserted

that the property was acquired by Sh.Dwarka Nath and Sh. Mahender

Nath, respondents pursuant to the relinquishment deed dated 4th

August, 1992, whereas the eviction petition was filed on 28th February,

1994 before the expiry of five years from the date of acquisition and

consequently in view of Section 14(6) of Delhi Rent Control Act, 1958

the eviction petition under Section 14(1)(e) of Delhi Rent Control Act is

not maintainable. Reliance has been placed by the petitioners on Shiv

Dutt Sharma v. Prem Kumar Bhatia, 1969 RCR Vol.VII page 558=

5(1969)DLT394. According to the petitioners relinquishment amounts to

transfer and for that reliance has been placed on Kuppuswami Chettiar

v. ASPA Arumugam Chettiar & Anr., AIR 1967 SC 1395.

20. The petitioners have also relied on the subsequent events as the

tenants and allegedly all the lawful sub-tenants except for the

petitioners had entered into a compromise with the respondents and

had even vacated their respective portions, i.e. all other portions in

possession of other persons except the legal representatives of

Sh.Radhey Shyam namely petitioner No.2 and 3 that is Sh.Dhruv

Kumar Gupta and Dushyant Gupta had vacated their respective

premises. Subsequently it was asserted that the major portions of the

property have become available to the respondents comprising of 9

rooms, 6 stores, 4 kitchens, 3 bath rooms and 2 toilets. It was also

contended that the family members of the respondents have changed

since the institution of the eviction suit, as the late Sh.Dwarka Nath,

respondent No.1 had died on 24th February, 2005 and his wife was

murdered on 14th January, 2005 and their son Rajneesh Kumar was

even arrested in connection with the murder of the wife of late

Sh.Dwarka Nath. Since late Sh.Dwarka Nath had pleaded his personal

requirement, the same did not exist anymore. The petitioners placed

reliance on Variety Emporium Vs. V.R.M. Mohd. Ibrahim Naina AIR

1985 SC 207, Amarjit Singh Vs. Smt. Khatoon Quamarain, AIR 1987

SC 741 & Pasupuleti Venkateswarlu Vs. The Motor & General Traders,

AIR 1975 SC 1409. Therefore the petitioners contended that the

subsequent event ought to be taken into consideration.

21. The pleas and contentions of petitioners are contested by the

respondents contending inter-alia that they are the owners and

landlords of the premises and the petitioners are the unauthorized

subtenants. It is pleaded that since their bonafide requirement is made

out, the unauthorized subtenants are also liable to be evicted. The

respondents have relied on the testimonies of Sh.Dwarka Nath, AW-1;

Sh.Shatrughan Poddar, AW-2; Sh.Mahender Nath, AW-3 and

Sh.M.K.Garg, AW-4. The respondents also contended that during the

pendency of the revision petition respondent No.1 Mr.Dwarka Nath had

expired and his legal representatives have been brought on record.

22. Refuting the pleas raised by the petitioners in the additional

affidavit, an affidavit dated 6th August, 2007 was filed by Sh.Mahender

Nath on behalf of the respondents contending inter-alia that the

deposition of Sh.Dhruv Kumar Gupta petitioner No.2 by affidavit dated

30th June, 2007 is to be removed from the Court record as the same

had not been attested before the Oath Commissioner as the deponent of

the said affidavit had not been identified by an appropriate counsel. The

additional deposition of petitioner No.2 Sh.Dhruv Kumar Gupta was

also objected to on the ground that the alleged subsequent facts could

not be taken on record as no prior permission had been taken from the

Court. The respondents further asserted that on an earlier occasion as

well an additional affidavit was filed by the petitioners in order to delay

the disposal of the revision petition. The respondents also asserted that

Sh.Dhruv Kumar Gupta is guilty of suppression of material facts as he

is in unauthorized occupation of the premises in his possession and he

has not even put to use the same premises which is instead lying in a

locked condition as he is residing at 1275, Vakilpura, Delhi-110006.

According to the respondents the brother of Sh.Dhruv Kumar Gupta

namely Sh.Dushyant Gupta also left the premises long ago and is

residing at 2431, Chipiwara Kalan, Delhi-110006. It was further

deposed on the affidavit filed by Sh.Mahender Nath that the other

petitioners in the petition had vacated the premises under their

respective possession and had shifted to other premises. A specific

averment was made that Sh.Dushyant Gupta brother of Sh.Dhruv

Kumar Gupta is no more interested in contesting and the petitioner

Sh.Dhruv Kumar Gupta is continuing the proceedings with an aim to

extort money/illegal gratification from the landlords. An allegation was

also made that Sh.Dhruv Kumar Gupta had demanded a huge sum of

money to vacate the premises in his possession.

23. The allegation against the murder of the wife of Sh.Dwarka Nath

by Mr.Rajneesh Kumar his son was denied. In any case it was asserted

that the murder and death of the wife of Sh.Dwarka Nath has no

bearing on the eviction petition of the respondents against the

petitioners, who are in any case unauthorized subtenants. It was

further reiterated by Sh.Mahender Nath that Sh.Rajneesh Kumar son of

Sh.Dwarka Nath is residing in the property in dispute. Regarding the

disconnection of the electricity to the portion under the possession of

Sh. Rajneesh Kumar, it has been asserted that the electricity could not

be restored on account of paucity of funds and more particularly for the

reason that the fresh fittings to be installed after the vacations, of the

other premises under the possession of the petitioners was not possible

since it was kept locked by them. Regarding the water charges,

deponent Mahender Nath asserted that some of the contesting

petitioners refused to pay the water charges which led to arrears,

however, this does not reflect on the fact that the premises is not being

used by the respondents.

24. Regarding the partition of the suit property it was contended that

a suit No.44/1980 was filed for partition of the properties left behind by

Smt.Sona Devi, mother of the respondent. On partition, the property

bearing No.1271, Vakilpura, Delhi-6 came to the share of Mr.Onkar

Nath, elder brother of the respondents who died in 1992. His rights in

the property devolved upon the respondents and their sister. Thereafter,

the sisters of the respondents executed relinquishment deeds dated 23rd

November, 1992 and their rights in the property were relinquished by

them, namely Smt.Jamuna Devi, Smt.Radha Rani and Smt.Shanti Devi

in favour of respondents. The respondents further contended that with

a view to avoid future disputes, they divided the property among

themselves by way of an oral family settlement and this settlement was

executed during the life time of late Sh.Dwarka Nath in the form of a

partition deed, however, as per the understanding between the

respondents, they remained as joint owners since the settlement

deed/partition deed was executed for future purposes only and it had

not been acted upon at the time it was executed nor was it intended to

be acted upon as there has been extreme intimacy, cooperation and

coordination among the respondents, in respect of entire property

No.1271, Vakilpura, Delhi. The allegation that the sons of Dwarka Nath

do not want to evict the petitioners was also denied by the

landlords/respondents.

25. The respondents/landlord have also contested the revision

petition on the ground that the scope of interference of under Section

25 (B) (8) of the Delhi Rent Control Act, 1958 is limited and order of the

Rent Controller has to be assessed on the touch stone of "whether it is

according to law or not? Relying on Manju Swaroop & Ors v. Vinay

Shankar Singh, 167 (2010) DLT 637 the respondents have contended

that the scope of revisional power is limited and the High Court will not

re-appreciate the evidence led before the Rent Controller as the power is

limited to find out if any material consideration or evidence has been

overlooked. In Sumitra Devi v. Raj Rani Sehdeo, 98 (2002) DLT 355, it

was observed as under:-

"It is also well settled that while exercising powers under Section 25-B(8) of the Act the High Court has to test the orders of the Rent Controller on the touch- stone of "whether it is according to law" or not. The High Court must not substitute its own opinion in place of the view taken by the Controller unless the view taken by him betrays lack of reason or objectivity or appears to be so unreasonable that no prudent man could have taken that view."

Similarly, it was held in J.K.Saxena v. Shri Madan Lal Khurana,

75 (1998) DLT 903, and Akhtari Begum & Ors. v. Abdul Qadir, RCR

No.60 of 2008 decided on 21st August, 2008, that the High Court

cannot substitute its own judgment in place of the judgment of learned

ARC. The eviction order can be set aside only if there is a manifest error

either of facts or of law on the face of judgment and the error must a

glaring which will vitiate the order itself. This is so because the power of

High Court under Section 25-B (8) is supervisory in nature and it is

intended to ensure that Rent Controller confirms to law when he passes

the order. It was further held that High Court will not be justified to

interfere with the decision of the Rent Controller merely because on the

same evidence, the High Court is likely to come to a different

conclusion. It was further held that the High Court, however, shall be

entitled to interfere in case material considerations have been

overlooked in assessing the need which can be termed as material

irregularity.

26. Hence according to the respondents the petitioners have not been

able to pin point any material irregularity. Reliance has also been

placed on Satya Wati Sharma v. UOI, 148 (2008) DLT 705 (SC) to

contend that even in respect of commercial premises, the petition on the

ground of bonafide requirement can be maintained. In Satya Wati

(Supra) the Supreme Court had held that the discriminatory portion of

Section 14(1)(e) of the Act was liable to be struck down making the

explanation of Section 14(1)(e) redundant and consequently, there could

not be any classification between the premises let out for residential

and non-residential premises. It was further held that a legislation

which might have been quite reasonable and rational at the time of its

enactment, it‟s possible that after the passage of time and/or due to

change of circumstances it might become arbitrary, unreasonable and

violative of doctrine of equality. The court in subsequent litigation can

strike down such law, if the rational for classification has become non-

existent. In the circumstances, it was held that even if a premise has

been let out for commercial purposes, the eviction can be sought of the

tenant from such a premise under Section 14(e) of the Delhi Rent

Control Act, for bona fide requirement of the landlord. Consequently,

the purpose of letting becomes irrelevant. It is, therefore, pleaded that

the premises which was let out for residential purpose in terms of the

rent note in favor of the tenant, the plea that the premises was not let

out for residential purposes cannot survive. The bonafide requirement

established against the tenant as it has not been contested by them

would also be binding on the subtenant and for this, reliance has been

placed on A.S.Sulochona v. C.Dharmalinagam, AIR 1987 SC 242 and

Imdad Ali v. Keshav Chand & Ors, AIR 2003 SC 1863

27. Regarding the change in the circumstances on account of the

demise of late Sh.Dwarka Nath and the murder of his wife, it is

contended that the bona fide need of the landlord has to be examined

as on the date of institution of the eviction petition, and if a decree of

eviction is passed, the death of the landlord during the pendency of the

appeal preferred by the tenants will make no difference. Reliance was

also placed on Carona Ltd. v. Parvathy Swaminathan & Sons,

AIR2008SC187.

28. The learned counsel for the respondents has relied on the cases of

2008(1) RLR 63 Usha P.Kuvelkar & Others v. Ravindra Subrai Dalvi,

wherein the Supreme Court had held that in a case filed by a landlady

on the ground of bona fide requirement despite the death of the

landlady during pendency of the eviction proceedings, her heirs will be

fully entitled to depend on the estate. Reliance was placed by the

Supreme Court on Shakuntala Bai v. Narayan Das, (2004) 5 SCC 772,

where it was observed that the bona fide need of the landlady has to be

examined as on the date of institution of the proceedings and if a decree

for eviction passed, the death of the landlady during the pendency of

the appeal preferred by the tenant would make no difference as his

heirs are fully entitled to depend on the estate.

29. This Court has heard the learned counsel for the parties in detail

and has perused the eviction petition and the other pleadings and the

affidavit filed by the petitioners regarding the subsequent event. In

Manju (Supra) a Single Judge of this Court had held that under the

revisional jurisdiction under Section 25-B(8) of Rent Control Act, the

High Court does not sit in appeal and would not re-appreciate the

evidence ordinarily. However, the evidence can be re-appreciated for the

purpose of assuring itself that order of the learned Additional Rent

Controller is in accordance with the evidence and does not suffer from

any jurisdictional or material irregularity. However, if the findings of the

Additional Rent Controller are perverse or such that no prudent person

can come to that conclusion or interference drawn are contrary to

record are based on absolutely no evidence, High Court would be

entitled to interfere under the said provision.

30. This has been established that Smt.Sona Devi had let out the

property to the tenant late Sh.Sh Sri. kishan who had executed a rent

note dated 29th November, 1992, Ex. AW1/A on a monthly rent of

Rs.115/-. The property was owned by Sh.Jagannath, the maternal

grandfather of the respondents and by registered family settlement deed

dated 29th August, 1938 Ex. AW2/1. The property came to the share of

Smt.Sona Devi, the mother of the respondents. Smt.Sona Devi had four

sons and one daughter. Her eldest son Sh.Rameshwar Nath‟s

whereabouts were not known since 1948 and he had left behind his

wife named Smt.Shanti Devi and a daughter named Smt.Radh Rani.

The second son of Smt.Sona Devi was Sh.Onkar Nath and he died as

bachelor on 18th June, 1992 and did not leave behind any chidren. The

third son of Smt.Sona Devi was late Sh.Dwarka Nath who died during

the pendency of the present proceedings on 23rd February, 2005 and

his legal heirs were brought on record by order dated 1st March, 2006 in

an application being CM No.11076 of 2005. The fourth son of Smt.Sona

Devi is Sh.Mahender Nath, respondent No.2. The only daughter of

Smt.Sona Devi also died on 15th August, 1993. From the evidence on

record, it is also established that late Sh.Dwarka Nath used to collect

the rent on behalf of all the legal heirs of late Smt.Sona Devi. The suit

property was partitioned among the legal heirs of Smt.Sona Devi in a

suit bearing No.44 of 1980 and the property had fallen into the share of

Sh.Onkar Nath. As Sh.Onkar Nath had expired interstate on 18th June,

1992 and his sister Smt.Shanti Devi, Smt.Radha Rani and Smt.Jamuna

relinquished their rights vide relinquishment deed dated 4th August,

1992, the respondents late Sh.Dwarka Nath and Sh.Mahender Nath

became the sole owners of the property. Therefore, it cannot be held

that the eviction petition would be barred under Section 14 (6) of the

Delhi Rent Control Act as the eviction petition was filed on 28th

February, 1994. The precedents AIR 1967 SC 1395 is distinguishable

as though by relinquishment deed, the rights of the sisters of the

respondents were transferred in favor of the respondents, however, they

themselves also had rights in the property prior to the relinquishment.

Consequently, the plea of the petitioners that the eviction petition was

premature and was barred under Section 14 (6) of the Delhi Rent

Control Act is rejected.

31. The eviction petition on the ground of bona fide requirement was

filed by the respondents against the legal representatives of the

deceased tenants of late Sh.Sri Kishan and all the sub tenants as well.

It was not essential to implead the sub tenants as party to the eviction

petition filed under Section 14 (1) (e) of the Delhi Rent Control Act. In

case the sub tenants had not been included in the eviction petition and

the orders of eviction petition on the ground of bona fide requirement

had been passed against the tenants, had the subtenants been

unlawful, the eviction order passed only against the tenant would not

be binding against the unlawful subtenants. If the subtenants would be

lawful, then they would only be entitled to claim that the bona fide

requirement be also established against them as on passing an eviction

order against the tenants, and by virtue of section 18 of Delhi Rent

Control Act, 1958 they would become a direct tenant under the

landlords/owner. However in the present case the petitioners who are

the subtenants were impleaded as parties to the eviction petition,

therefore the ground of bona fide requirement has also been established

against them. The petitioners, admittedly did not give any notice under

section 17 (2) of Delhi Rent Control Act, 1958 and therefore, on passing

of an eviction order against the tenant, they would not become a direct

tenant under the respondents under section 18 of the Delhi Rent

Control Act,1958. In the present case all the tenants and sub tenants

were impleaded as parties and the landlords have established their

bonafide requirement as against the tenants and the sub tenants.

Therefore, the present petitioners who are the sub tenants would also

be liable for eviction in case the bona fide requirement of the

respondents is sustained and is not set aside on the grounds alleged by

the petitioners.

32. From the testimonies of the AW1, late Sh.Dwarka Nath, AW2

Sh.Shatrughan Poddar, AW3 Sh.Mahender Nath, AW4 Sh.M.K.Garg a

witness from the Electricity Department and considering the evidence of

the petitioners RW1 Smt.Bimla Devi and RW2 Sh.Jai Kishan, it has

been established that the respondents are the owners and thus, the

landlord of the premises, as the premises was let out by Smt.Sona Devi

to late Sh.Shi Kishan who had further sub let the premises to the

petitioners. This also cannot be disputed that the term "Owner" under

Section 14 (1) (e) of the Delhi Rent Control Act does not contemplate an

absolute owner. The Courts have held that the eviction petition on the

ground of bona fide requirement can be maintained even by a co-owner.

33. The revision petition filed by the petitioners cannot succeed on

the ground that the respondents have other residential accommodation

available in other properties as detailed hereinabove because it is

apparent from the evidence that the property No. 982 Chawdi Bazzar,

Delhi-6 is a commercial property and not a residential property and

therefore, no residential accommodation is available to the respondents.

Besides making the allegations that property No.2707 Churi Walan,

Delhi-6 and property No.2753/6 Chuna Mandi Paharganj, Delhi-5 are

residential properties and are owned by the respondents and their

family members, no cogent evidence has been led by the petitioners

which would show that the said properties are the properties of the

respondents. Consequently, on the allegation that the respondents have

not disclosed all the residential properties available to them and they

are not entitled for eviction order on the ground of bona fide

requirement cannot be accepted and this plea of the petitioners is

rejected.

34. The petitioners have also sought dismissal of eviction petition on

the ground that the order of eviction also includes the basement which

is not a part of the tenancy premises. On account of the subsequent

events, the legal representatives of the tenants and various sub tenants

except the petitioners had vacated the different portions of the property

in dispute, and the respondents had filed an additional affidavit dated

26th February, 2011 along with a site plan Annexure R2/A showing the

portions in possession of the petitioners. The portions in possession of

the petitioners are shown in red in the said plan. The plan is of the

building bearing Nos.1271 and 1271-A (Old Nos.442 and 442A) Ward

(IV) situated at Vakilpura, near Jama Masjid, Delhi-110006. A copy of

the affidavit dated 26th February, 2011 and the plan Annexure R2/A

which was prepared by B.B. Associates & Architects, was duly signed

by them and by Sh.Mahender Nath, which was given to the petitioners

and thereafter the petitioners had also sought time to file the response

to the additional affidavit dated 26th February, 2011 and the plan

Annexure R2/A. Despite opportunity given to the petitioners, they did

not file the response. Consequently, the depositions of respondent No.2

regarding the subsequent event and the plan Annexure R2/A have

remained un-rebutted. In the circumstances, the plan Annexure R2/A

showing the portion now in possession of the petitioners is exhibited as

Exhibit RW 2/A. From the evidence on record it is inevitable to infer

that the basement also formed a part of the tenancy premises. In the

written statement filed by the tenants it was categorically stipulated

that the basement formed a part of the tenancy premises. The

respondents had also filed an eviction petition on the ground of

unauthorized sub-tenancy by the tenants in favor of the petitioners. In

the said petition also a Civil Misc Petition being CM (Main) 1675 of 2006

was filed by the petitioners wherein they had taken the same plea that

the eviction order was passed in respect of basement which did not

form part of the tenancy premises. In the said petition it has been held

by this Court as under:

"48. The learned counsel for the petitioners had also contended that the eviction petition was filed in respect of a part of the tenancy premises and thus the decree for eviction could not be passed for a portion of the premises in the property which was not let out to late Sh.Sri Kishan tenant. According to the learned counsel for the petitioners, the basement was not a part of the tenancy premises. The plea of the learned counsel for the petitioners, however, in the facts and circumstances has to be rejected as it was categorically stipulated in the written statements filed by the tenant and the sub-tenants that the basement was part of the tenancy premises. Consequently, now the petitioners cannot raise the plea that the eviction petition was in respect of a part of the tenancy premises and therefore could not be passed against the petitioners. In any case on account of subsequent events, as except for the petitioners, everyone i.e. the legal representatives of deceased tenant Sh.Sri Kishan and the other sub-tenants had been evicted from the premises pursuant to their compromise with the respondents, and a plan showing the premises in possession of the petitioners was filed along with an affidavit showing the premises under their occupation, which specifies the basement and the dalan portion of the premises which has been exhibited as Exhibit X. Despite the ample opportunity given to the petitioners, reply to the additional affidavit was not filed nor was the correctness of the plan showing the demised premises under the occupation of the petitioners denied. The plan showing the premises under the tenancy of the petitioners was exhibited as exhibit X. In the circumstances it cannot be held that the eviction petition was filed in respect of a part of the demised premises and hence was not maintainable. In 150 (2008) DLT 339, Suman Sodhi & Ors v. Yogender Sharma, it was held that merely because a tenant/sub-tenant or unauthorized occupant without express consent or authority of landlord/owner raises construction in a portion of the tenanted premises, he cannot object to delivery of possession on the ground that such portion did not form part of the eviction order. It was further held that if such an argument is accepted it would be putting premium on the illegality of tenant/sub-tenant and they cannot be allowed

to take advantage of their own wrong. Consequently, the plea of the petitioner that the eviction petition was in respect of the part of the tenancy premises and the portion of the premises in occupation of the petitioners did not form part of the tenancy premises cannot be accepted. This plea has to be rejected as it is not the case of the petitioners that the portion in their possession except the basement was given on sub-tenancy by Sh.Sri Kishan to their predecessor, Sh.Radhey Shyam and Sh.Radhey Shyam later on illegally and unauthorisedly occupied the basement. The property in fact was let out to Sh.Sri Kishan who had inducted the sub-tenant including late Sh.Radhey Shyam. Therefore, in the totality of facts and circumstances this plea has to be rejected. ..........."

In the circumstances the plea of the petitioners that the eviction

order has been passed in respect of premises which did not form part of

the tenancy premises is repelled and on this ground the eviction order

passed under section 14 (1) (e) of Delhi Rent Control Act, 1958 is not

liable to be set aside.

35. Petitioners have also sought rejection of the petition on the

ground that the facts pertaining to the partition of property between

Sh.Mahender Nath and Sh.Dwarka Nath, the landlords had not been

disclosed by the respondents, though the partition was effected prior to

the institution of the eviction petition. This is true that the fact that

there had been a partition between Sh.Mahender Nath and Sh.Dwarka

Nath had not been disclosed, but had been admitted to by the

respondents only when they were confronted with the photocopy of the

partition deed produced by the petitioners. Rather the plea raised by

the respondents was that though there was a partition by virtue of a

registered partition deed, however, it was not acted upon. Considering

the facts and circumstances, however, the eviction petition cannot be

dismissed on the ground of suppression of the partition between

Sh.Mahender Nath and Sh.Dwarka Nath, because of the fact that even

after partition portions of the premises demised to late Sh.Sri Kishan

continued under both the landlords as this cannot be disputed in law

that tenancy of Late Sh. Sri Kishan could not be divided pursuant to

partition between the co-owners. A copy of the plan along with the

partition deed was filed, which shows that a portion of the tenanted

premises remained in the ownership of late Sh.Dwarka Nath whereas

another portion had fallen into the share of Sh.Mahender Nath. The

plan which was a part of the partition deed dated 7th April, 1993 which

was registered as document No.2041 in Additional Book No.1 Vol. 6132

at Pages 76-84 showing the portions in yellow which fell in the share of

late Sh.Dwarka Nath and portions in green which fell in the share of

Sh.Mahender Nath. A copy of the partition deed dated 7th April, 1993

was filed on behalf of the petitioners alleging subsequently that the fact

about the partitioning of the property between the deceased respondent

No.1 and respondent No.2 had not been disclosed, and therefore, the

eviction petition should be dismissed. As the copy of the plan which was

a part of the partition deed dated 7th April, 1993 was not filed therefore,

the respondents were directed to file the certified copy. Pursuant to

which the said copy of the plan was filed in index dated 23rd July, 2010

and 24th July, 2010. Perusal of the said plan categorically reveals that

though the portion of the property No.1271 on the ground floor, 1st floor

and 2nd floor and Barsati Floor had been partitioned between late

Sh.Dwarka Nath and Sh.Mahender Nath, however, the tenancy portion

had fallen in the share of late Sh.Dwarka Nath and Sh.Mahender Nath

both. On account of partition of property No. 1271 between late

Sh.Dwarka Nath and Sh.Mahender Nath, the entire tenancy premises

had not fallen in the exclusive share of either late Sh.Dwarka Nath or

Sh.Mahender Nath. In the circumstances, the tenancy premises could

not be divided on the ground of partition between late Sh.Dwarka Nath

and Sh.Mahender Nath by partition deed dated 7th April, 1993, nor is

the eviction petition liable to be dismissed on this ground as the

eviction petition has been filed by both late Sh.Dwarka Nath and

Sh.Mahender Nath.

36. The partition of the property between Sh.Dwarka Nath and

Sh.Mahender Nath could have impact on the requirement propounded

by both of them, however, it has been contended by the respondents

that though the partition deed was executed however, the property has

not been divided by meets and bound either by Sh.Dwarka Nath or after

his life by his legal heirs with Sh.Mahender Nath. An additional affidavit

dated 30th June, 2007 was filed on behalf of the petitioners by

Sh.Dhruv Kumar alleging the partition between Sh.Dwarka Nath and

Sh.Mahender Nath. In reply, a counter affidavit dated 6th August, 2007

was filed by Sh.Mahender Nath, respondent No.2 contending

categorically that in order to avoid any differences between the children

of Sh.Dwarka Nath and Sh.Mahender Nath, an understanding via an

oral family settlement was arrived at and that, acting on legal opinion at

the time, the partition deed dated 7th April, 1993 was executed.

However, despite the execution of the partition deed, it has not been

acted upon between the respondents due to the intimacy, cooperation

and coordination amongst the respondents. It has also been asserted

that the partition deed was not even filed with the Municipal

Corporation of Delhi, nor was the property divided by meets and bound.

37. The respondents also contended that the petitioners are taking

mutually destructive pleas as they have alleged that the respondents

are not the owners of the property and on the other hand they have also

contended that the respondents are the owner of the different portions

of the property bearing Nos. 1271, relying on the partition deed, which

reflects the mala fide on the part of the petitioners.

38. In the circumstances, it is apparent that there is no evidence that

despite the partition of the suit premises by partition deed dated 7th

April, 1993, the respondents have not acted upon the same and also no

evidence has been produced by the petitioners proving that the property

has been divided physically by Sh.Dwarka Nath and Sh.Mahender Nath.

Had it been so, the petitioners, who were the only occupants left in the

property would have known and would have produced some evidence to

prove the same. In any case on this ground, it cannot be held that there

is such concealment of facts which would entail dismissal of eviction

petition in the facts and circumstances. The respondents in their

counter affidavit dated 6th August, 2007 also disclosed that the

petitioners though in possession of the premises shown in red in the

site plan Ex.R2/A which includes the basement, they however are not

residing in the property in dispute and are only contesting the bonafide

requirement of the respondents with a view to extort money from the

respondents for vacating the premises. It was also contended that

Sh.Dhruv Kumar had demanded a huge sum of money to vacate the

premises which had led to the dismissal of the appeal filed by the

petitioners against the order of the eviction passed under Section 14

(1)(b) on account of sub letting or parting of possession with cost of

Rs.10,000/-.

39. Even if the partition between the respondent no.1 and respondent

no.2 is considered and considering the accommodation available with

them in their respective portions and their family members, the

requirement of the respondents is made out and there does not appear

to be such error which would require any interference by this Court.

Perusal of the pleadings reveal that the family of late Sh. Dwarka Nath,

at the time the eviction petition was filed, consisted of himself, his wife

and three sons, namely, Vishwanath, Deepak Kumar and Rajneesh

Kumar. Two sons namely, Vishwanath and Deepak are married and

have their own families. The family of Vishwanath comprises of his

wife, a son and a daughter, namely, Nikhil and Nitika, whereas the

family of the Deepak Kumar comprises of his wife and a daughter

named Shruti. The third son of the respondent No. 1 Rajneesh Kumar is

unmarried and residing in the property in dispute in a portion which

was vacated by the tenants and subtenants later on. Sh. Dwarka Nath,

respondent No. 1 had died during the pendency of the present revision

petition and during his lifetime, his wife Smt. Usha Rani had also been

murdered.

40. The married son of Sh. Dwarka Nath, namely, Sh. Vishwanath is

residing in a rented house bearing No. 6/2753, Rajpur Road, Chuna

Mandi, Pahar Ganj in one room with a small kitchen and a bathroom.

The plan of the rented property which is in occupation of Sh.

Vishwanath is Ex. AW1/19. This cannot be disputed that the said son

after the demise of his father has become co-owner/landlord. If the

landlord is living in a rented accommodation he would be entitled to

shift the residential accommodation owned by him and the rented

accommodation cannot be construed to be suitable for him and

therefore his requirement would be bona fide. Thus the requirement of

Sh. Vishwantha son of Late Shri Dwarka Nath would be bona fide. The

other son, namely, Sh. Deepak Kumar, was residing with his father Sh.

Dwarka Nath and his family in a rented property bearing No. 3865,

Charkhewalan, Delhi in an accommodation comprising of one room, a

kitchen, latrine on the first floor of the said property. Site plan of the

said property showing the premises in possession of late Sh. Dwarka

Nath and his son Deepak is Ex. AW1/18. The said son is also entitled to

live in his own property and his requirement cannot be termed to be not

bona fide nor can it be held that he has reasonably suitable

accommodation available to him which is a rented premise.

41. At the time of the institution of the eviction petition, petitioner No.

2 Sh. Mahender Nath was residing in adjacent residential

accommodation bearing No. 1271A, Vakilpura, Delhi comprising of a

Duchhatti and a store on the ground floor; two rooms, one small store,

one kitchen, one bathroom and one urinal on the first floor and two

rooms, two small stores and one bath room on the second floor and a

Barsati on the top floor.

42. The family of respondent No. 2 comprised of his wife and a

married son and two minor children. The other son of respondent No. 2

Arun Kumar, though was unmarried at the time of institution of the

present eviction petition, he had gotten married subsequently has two

minor children. Consequently, the family of respondent No. 2 comprise

of ten members, out of which the wife of late sh. Dwaraka Nath, namely,

Usha also expired during the pendency of the present petition.

43. The property in dispute where the demised premises is situated

comprised of three floors. After partition, the rooms which have fallen

into the share of Sh. Dwarka Nath on the ground floor are two rooms

with two stores, part of the common courtyard, a portion of kitchen; on

the first floor comprised of two stores, two bathrooms, one kitchen, one

pooja room, one hall and a part of the passage around the jaal.

44. On the second floor, the area which has fallen to the share of the

deceased respondent No. 1 comprised of one bath room, one room

measuring 13‟3" x 9‟ 6" and one barsati. The portion of the house

which had fallen to the share of respondent No. 2 Sh. Mahender Nath

Gupta comprised of one room measuring 12"6" x 6‟8", a store,

bathroom, two kitchen, WC and urinal on the ground floor; one room

measuring 12‟6" x 7‟ besides two bathrooms, one kitchen and one store

and one room measuring 12‟9" x 7‟; one store and one kitchen with a

warrandah on the second floor and 12‟7" x 18‟3" Barsati and open

terrace on the barsati floor.

45. Since the property No. 1271A is adjoining to property bearing No.

1271, if one takes into consideration the accommodation available to

Sh. Mahender Nath in property bearing No. 1271A and 1271, the total

number of rooms, which would be available to Sh. Mahender Nath

would be 9 rooms, and six small stores measuring about 6‟8" x 8‟4".

Exhibit RW 2/A shows the portion in possession of the petitioners in

red and the other portions of property No. 1271 and 1271 A, the

Ground Floor, First Floor, Second Floor and Barsati Floor and the

basement. This cannot be disputed by the petitioners that a room of

less than 100 sq. feet cannot be considered to be room fit for living. This

has been laid down in a number of judgments by the Courts in Delhi. In

Brij Mohan v. Sri Pal Jain 1993, Rajdhani Law Reporter 190 this Court

has held that a tenant cannot claim that a room of a size of less than

100 sq.feet is a living room. Similarly, in Uttam Chand Suri v. Smt.

Ram Murti 1980(2) RCJ 410 it was held that a room or a Kotha, area

which is less than 100 sq.ft would not fall within the definition of a

living room. The Delhi Municipal Corporation (Building) Bye-laws 1959

as amended from time to time prescribes the requirements regarding

the minimum size of a habitable room. By-law 20 prescribes that no

habitable room shall have a floor area of less than 100 square feet. The

relevant portion of is as follows:

"The store measuring 7'-7"x5'-5" over which there is loft cannot be said to be a living room but the tenant/appellant in his anxiety to show that the landlady has sufficient accommodation described the store as a room. By any stretch of imagination the store cannot be treated as a living room. As regards the room which is being used as a kitchen its area is less than 100 sq.ft. The local commissioner's report is that this room under the main was being used as a kitchen and is so held by the Tribunal after considering the evidence on record. The question for decision is whether this room is a living room. The answer is in negative. The Delhi Municipal

Corporation (Building) Bye-laws 1959 as amended from time to time prescribe the requirements regarding minimum size of a habitable room.-Bye-law 20 prescribes that no habitable room shall have a floor area of less than 100 square feet."

If one is to consider the plan Exhibit RW 2/A, the habitable

rooms in property no. 1270 are one on the ground floor, three on the

first floor, one on the second floor. The other rooms on the ground floor,

first floor and second floor are smaller rooms and can be termed as

stores but cannot be considered as habitable rooms. It is this

accommodation within the property no.1271 which has been

partitioned between the respondent no.1 and respondent no.2 by the

partition deed, however, the plea of the respondents is that it has not

been acted upon as the property has not been partitioned by meets and

bounds. The accommodation available to respondent no.2 in the

property no. 1271 A, which is an adjoining property comprises of one

room on the ground floor, two rooms on the first floor and two rooms on

the second floor. Even though the barsati on the Barsati Floor Plan has

an area of more than 100 sq. feet, however, it cannot be considered a

habitable room.

The family of late Shri Dwarka Nath at the time of filing the

eviction petition comprised of himself, his wife and three sons, namely,

Vishwanath, Deepak Kumar and Rajneesh Kumar. Two sons namely,

Vishwanath and Deepak are married and have their own families. The

family of Vishwanath comprises of his wife, a son and a daughter,

namely, Nikhil and Nitika, whereas the family of the Deepak Kumar

comprises of his wife and a daughter named Shruti. The third son of the

respondent No. 1 Rajneesh Kumar is unmarried and residing in the

property in dispute in a portion which was vacated by the tenants and

subtenants later on. The word `himself‟ in section 14 (1) (e) of Delhi

Rent Control Act, 1958 includes all the normal emanation of the word

himself. The word `himself‟ cannot be construed strictly as applying

only to the landlord.

The need under the said section is to be seen of the family as one

unit. The family of landlord is bound to live with him. Man being a

social being can hardly live alone by himself. Therefore when the

respondent no.1 propounded the requirement for himself while filing the

eviction petition that included the requirement of his children even if

his sons were not dependent upon him. After the death of respondent

no.1 and his wife, the requirement of his sons and their family members

would survive. The youngest son though accused of murdering his

mother is living in the said property and his requirement cannot be

ignored on account of the allegation that he has been implicated in the

murder of his mother. In Shanti Lal Thakoradas Vs Chimanlal Maganlal

Telwala, 1976 RCJ 828 it was held by the Supreme Court as under:

"In our opinion in face of the wording of sec. 14(1) (e) of the Delhi Act, the view expressed in Phool Rani‟s case as stated above, is not correct. If the law permitted the eviction of the tenant for the requirement of the landlord‟s for occupation as a residence for himself and members of his family, then the requirement was both of the landlord and the members of his family. On his death the right to sue did not survive to the members of the family of the decease landlord. We are unable to take the view that the requirement of the occupation of the members of the family of the original landlord was his requirement and ceased to be requirement of the members of his family on his death. After the death of the original landlord the senior member of his family takes his place and is well competent to continue the suit for eviction for his occupation and the occupation of the other members of the family."

In the circumstances, after the demise of Late Shri Dwarka Nath

the need of the surviving members of his family, his sons and their

family will survive and it cannot be held that the respondents would not

be entitled to seek eviction of the petitioners or that the requirement of

the sons of the deceased Dwarka Nath cannot be considered. This is

also no more res integra that the effect of subsequent events can be

taken into account by the Court in granting appropriate relief on the

analogy of the principle embodied in Order VII Rule 7 of C.P.C

particularly when justice requires this to be done and the facts are not

in dispute

46. The petitioners had contended about the partition between the

respondent no.1 and respondent no.2 by a deed of partition dated 7th

April, 1993. The petitioners had produced a copy of the partition deed

but had not produced the copy of the plan showing the different portion

of the property no.1271 which had fallen into the share of respondent

no.1 and respondent no.2. Consequently the respondents were directed

to file the copy of the plan which was filed along with the partition deed

showing different portion which had fallen in their respective share. The

copy of the plan which was filed with the partition deed was filed by the

respondents showing the portion in yellow which had fallen in the share

of Late Shri Dwarka Nath, respondent no.1 and portion in green which

had fallen in share of Shri Mahender Nath, respondent no.2. The

portions in pink denoted the potions that remained common to both the

respondents.

Barsati floor plan showing the portions of respondent no.1 and

respondent no.2

Ground floor plan showing the portions of respondent no.1 and

respondent no.2

First floor plan showing the portions of respondent no.1 and respondent

no.2

Second floor plan showing the portions of respondent no.1 and

respondent no.2.

47. In the present facts and circumstances, this copy of the plan

which was filed by the respondents with the partition deed dated 7th

April, 1993 can be taken into consideration, as the copy of the partition

deed was filed by the petitioners in the above noted petition with an

additional affidavit. Perusal of this plan and the tenancy premises

demised to the tenant Late Shri Sri Kishan Dass shows un-equivocally

that the premises demised had fallen in the share of late respondent

no.1 and respondent no.2. Therefore, since the demised premises could

not be divided, the eviction petition could not be filed by any one of the

respondents without impleading the other respondent. Since both the

respondents have propounded their requirement, considering their

families, and the respective portions which have fallen in their shares, it

is apparent that the residential accommodations available to them are

insufficient for themselves and their family members. The family of the

respondent no.2 comprised of his wife and a married son and two minor

children at the time of institution of the eviction petition. The other son

of respondent No. 2 Arun Kumar, though was unmarried at the time of

institution of the present eviction petition, he has got married

subsequently and has two minor children. Consequently, the family of

respondent No. 2 comprise of ten members. Considering the

accommodation available to him in the property no. 1271 A and 1270, it

is apparent that the residential accommodation available to him is

insufficient for himself and his family members. In the circumstances, it

is apparent that the respondents had bona fide requirement for

residential premises at the time of institution of petition and their

requirement for residential premises still subsists in the present facts

and circumstances considering the death of Late Shri Dwarka Nath and

his wife.

48. In the circumstances, it is inevitable to infer that the bona fide

requirement of the respondents still subsists and they are entitled to

execute the order of eviction passed against the tenants and sub

tenants including the petitioners. As all other sub tenants and tenants

have vacated their respective portions, the respondents shall be entitled

to recover the portion of the premises shown in red in plan Exhibit RW

2/A from the petitioners as well.

49. Even after re-appreciating the evidence for the purpose of

assuring whether the order of the learned Additional Rent Controller is

in accordance with the evidence or not, it does not reveal any

jurisdictional or material irregularity. Therefore, the inevitable inference

is that no such jurisdiction or material irregularity has been pointed out

by the petitioners which will entail any interference by this Court under

Section 25 B (8) of Delhi Rent Control Act, 1958. The eviction order

cannot be set aside as there is no manifest error either of facts or of law

on the face of the judgment nor does it suffer from any such glaring

error which would vitiate the order of eviction passed by the Rent

Controller on the ground of bona fide requirement of the respondents

under Section 14 (1) (e) of Delhi Rent Control Act, 1958.

50. Therefore in the totality of facts and circumstances, there are no

merits in the revision petition filed by the petitioners and it is therefore,

dismissed. Parties are however, left to bear their own costs.

May 6th, 2011                                       ANIL KUMAR J.
„k/vk‟