Delhi High Court
Sh. Ghanshyam Dass Gupta & Anr. vs Sh. Prem Chand on 24 May, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 20.05.2011
Judgment delivered on: 24.05.2011
+ RSA No.61/2009
SH. GHANSHYAM DASS GUPTA & ANR. ...........Appellants
Through: Mr. Yogesh Chhabra,
Advocate.
Versus
SH. PREM CHAND ..........Respondent
Through: Mr. Faiz Ahmad, Advocate
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1 This appeal has impugned the judgment and decree dated
05.03.2009 which has reversed the finding of the trial Judge
dated 03.07.2008. Vide judgment and decree dated 03.07.2008
the suit filed by the plaintiffs Ghanshyam Dass Gupta & Anr
seeking possession of the suit property (i.e. two rooms with
common latrine and open and covered verandah on the ground
floor of property bearing No. 2918, Aryapura Subzi Mandi,
Delhi-110007) had been decreed. The impugned judgment had
reversed this finding; suit of the plaintiffs stood dismissed.
2 The case of the plaintiff is that his father Baishakhi Ram
Gupta was the owner of the aforenoted suit property. He had
tenanted the suit premises to Ram Sharan. After the death of
Ram Sharan his widow Khazani Devi had inherited the tenancy
which tenancy was terminated during her lifetime. Defendant
who is her son is an unauthorized occupant. Rent has also not
been paid. Legal notice dated 03.10.2006 (Ex.PW-1/7) had been
served upon the defendant terminating his tenancy but to no
avail. Present suit was thereafter filed seeking possession of the
suit property as also damages.
3 The defendant refuted the claim of the plaintiff. His case
was that all the legal heirs of Ram Sharan were dependent upon
him; they had inherited the tenancy; the defendant being the son
of Ram Sharan is a tenant in his own right; rate of rent being
below Rs.3,500/- per month, protection under Section 50 of the
Delhi Rent Control Act (DRCA) is available to the defendant; he
could not be evicted.
4 On the pleadings of the parties, the following seven issues
were framed:-
1. Whether the tenancy of Sh. Ram Sharan was duly and validly
terminated. If so, its effect? OPP
2. Whether the tenancy of Smt. Khazani Devi was duly and validly
terminated. If so, its effect? OPP
3. Whether the suit has been properly valued for the purpose of court
fees and jurisdiction? OPP
4. Whether the suit of the plaintiff is barred by section 50 of DRC Act
1958? OPD
5. Whether the suit is without cause of action? OPD
6. Whether the plaintiff is entitled to recover arrears of rent and
damages as prayed for in para B of the Relief? OPP
7. To what relief(s0 the plaintiff is entitled to?
5 Oral and documentary evidence was led. Issue no. 1 was
decided against the plaintiff. It was held that the tenancy of Ram
Sharan had not been validly terminated. Issue No. 2 was decided
in favour of the plaintiff. The trial Judge was of the view that the
tenancy of Khazani Devi has been validly terminated vide notice
Ex. PW-1/3 dated 18.11.1996 terminating her tenancy w.e.f.
31.12.1996; the postal receipt Ex. PW-1/4 and certificate of
posting Ex. PW-1/5 had been adverted to; the original A.D. Card
bearing her thumb impression Ex.PW-1/6 was also noted. This
issue was decided in favour of the plaintiff. The trial Judge while
dealing with issue No. 4 had noted that the bar of Section 50 of
the DRCA is not applicable; the provisions of Section 2 (l) of
DRCA had been expounded; the Court had held that the
averment of the plaintiff was specific to the effect that Khazani
Devi was the only legal heir of Ram Sharan who was financially
dependent upon her; her tenancy had also been validly
terminated during her lifetime; no other legal heir inherited the
tenancy; the defendant was an unauthorized occupant; suit of
the plaintiff was accordingly decreed.
6 This finding was reversed in appeal. The appellate court
was of the view that the notice dated 18.11.1996 sent to Khazani
Devi has no sanctity in law as all the legal heirs of the Ram
Sharan were protected under the DRCA; jurisdiction of the civil
court was barred. Civil suit was not maintainable.
7 This is a second appeal. It has been admitted and on
15.11.2010, the following substantial question of law was
formulated:-
"Whether the impugned judgment dated 05.03.2009 holding that the
provision of Section 50 of the Delhi Rent Control Act, 1958 is attracted is not
a perverse finding and if so its effect?"
8 On behalf of the appellant, it has been urged that the
impugned judgment dismissing the suit is a perversity. The trial
court had failed to appreciate Section 2(l) of the DRCA which
had been incorporated by the amendment of 1975. It is pointed
out that Khazani Devi was in the first category of inherited
tenant; her tenancy was also validly terminated during her
lifetime; this finding of the trial Judge has in fact not been upset
in the impugned judgment. The impugned judgment had
proceeded on the wrong assumption that all the legal heirs were
liable for protection under the DRCA. The judgment suffering
from a perversity is liable to be interfered with.
9 Arguments have been rebutted. It is pointed out that the
impugned judgment calls for no interference.
10 The Delhi Rent Control Act, 1958 is a statute which had
been promulgated for providing for the control of rents and
evictions. Section 2 (l) of the DRCA is relevant and it reads as
under:-
2. In this Act, unless the context otherwise requires,-
(l) „tenant‟ means any person by whom or onwhose account or behalf the rent
of any premises is, or, but for a special contract, would be, payable, and
includes-
(i) ............
(ii)............
(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,
(c) parents,
(d) daughter-in-law, being the widow of his pre-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) any person against whom an order or decree for eviction has been made,
except where such decree or order for eviction is liable to be re-opened
under the proviso to section 3 of the Delhi Rent Control (Amendment) Act,
1976. 18 of 1976.
(B) XXXXXXXX
Explanation 1.-The order of succession in the event of the death of the person
continuing in possession after the termination of his tenancy shall be as
follows;-
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 III.-For the removal of doubts, it is hereby declared that,-
(a) where, by reason of Explanation II,. the right of any successor to continue
in possession after the termination of the tenancy becomes extinguished,
such extinguishment shall not affect the right of any other successor of the
same category to continue in possession after the termination of the tenancy;
but if there is no other successor of the same category, the right to continue
in possession after the termination of the tenancy shall not, on such
extinguishment, pass on to any other successor specified in any lower
category or categories, as the case may be;
(b) the right of every successor, referred to in Explanation L to continue in
possession after the termination of the tenancy, shall be personal to him and
shall not, on the death of such successor, devolve on any of his heirs;]
11 The category of succession has been detailed. After the
death of original tenant, the tenancy would devolve first upon
the spouse and then upon the children i.e. son or daughter; as in
this case first upon the widow & then upon his son and
daughter; explanation II states that where the legal heir was not
financially dependent upon the deceased, the tenancy would be
inheritable for 1 year only; explanation III clause (a) & (b)
explains that the successor of each category shall not pass on
this inheritance to the next lower category; thus right of every
successor to continue in possession will be personal to him and
shall not on his death devolve upon any other heir. Khazani Devi
was the spouse of the original tenant i.e. Ram Sharan. In the
plaint, it has been specifically averred that Khazani Devi was the
only person financially dependent upon Ram Sharan and her
tenancy had been terminated vide a legal notice during her own
lifetime. This had been adverted to while dealing with issue no.
2; the trial Judge had returned a fact finding that the tenancy of
Khazani Devi had been validly terminated vide Ex.PW-1/3. The
impugned judgment had rejected this finding on the legal
proposition that the tenancy had devolved upon all the legal
heirs i.e. upon the spouse and the children together. This was
incorrect. The impugned judgment had upheld the finding of
trial Judge on issue No. 1 holding that tenancy of Ram Sharan
had not been validly terminated but had gone on to proceed that
all the legal heirs of Ram Sharan had become tenants after the
death of Ram Sharan by operation of law; the notice dated
18.11.1996 (Ex.PW-1/3) issued to Khazani Devi had no sanctity
in the eyes of law as all children were also tenants along with
Khazani Devi.
12 This was a wrong legal proposition and against the
purport of section 2 (l) of the DRCA which has categorized the
manner in which the tenancy has to devolve after the death of
statutory tenant. It first has to devolve upon the widow of the
statutory tenant who in this case was Khazani Devi; she was the
only heir financially dependent and living with the deceased at
the time of his death. The impugned judgment had not set aside
the fact finding that Ex.PW-1/3 had terminated the tenancy of
Khazani Devi; it had proceeded on the assumption that since all
the legal heirs of Ram Sharan had become tenants, termination
of tenancy of Khazani Devi by itself was not sufficient; other
legal heirs had also become tenants. This as already noted was
an incorrect proposition.
13 After the termination of the tenancy of Khazani Devi
during her lifetime and her right to inherit the tenancy being
personal; after her the other legal heirs did not get a right to
inherit the tenancy; it was also not the case of the defendant
that he was financially dependent upon his deceased father and
was entitled to the tenancy on that count. This was never his
defence (as is evident from the written statement) that he was
living in the premises with his father or was financially
dependent upon him. The defendant had thus become an
unauthorized occupant. His unauthorized occupation had also
been terminated vide legal notice dated 03.10.2006 (Ex.PW-1/7).
There is no dispute about this fact. The defendant having
become an unauthorized occupant, he was liable to be evicted.
14 In the judgment of ILR (1980) II Delhi 854 Krishna
Prakash & Ors. Vs. shanta Sinha Chinoy & Anr.) the Division
Bench of this Court had noted as follows:-
".............The amended section 2(1) has been reproduced above. Briefly, the
relief given is that the most preferable legal representative who was living
with the family of the tenant at the time of his death and who was financially
dependent on his death would be regarded as the successor of the tenant
enjoying the statutory protection which had been enjoyed by the tenant prior
to the death of the tenant. On the contrary, if such. a heir was not financially
dependent on the tenant on the death of the tenant, than such a successor
would acquire the right to continue in possession of the leased premises only
for a period of one year and on the expiry of that period this right to continue
in possession would come to an end.
XXXXXXXXXXXXXXXXX
..............Broadly speaking, there are two-fold remedies which are available to
the landlord against the legal representatives of the tenant. If the legal
representative who continues in occupation of the premises was living with
the landlord at the time of his death and was also financially dependent on
the date of his death; then such a legal representative would inherit the
tenancy or the statutory protection of the tenant and would be a tenant for
the purpose of the Act. The proceeding for eviction against such a person can
be filed by the landlord only under the Act, and, therefore, before the
Controller. During the relationship between the landlord and the tenant the
landlord would have to take recourse to the proceeding under the Act and
would have to prove one of the causes of action which would entitle him to
evict the tenant under the Act. If is the order of the Controller upholding the
contention of the landlord which would secure the eviction of the. tenant in
favor of the landlord. On the contrary, if the landlord fails to prove the facts
Constituting the cause of action, the eviction petition would stand dismissed
and the leased premises would continue to be held by the legal
representatives of the tenant who are in the same position as the deceased
tenant was. Such a successor of the deceased tenant can be evicted by the
landlord .precisely in the same way as the deceased tenant would be evicted
and no other manner and in no other forum. 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(1) acquired a right to continue in possession
of the demised premises only fora 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 a
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 or 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 evicted is not a
tenant at all."
15 The bar of Section 50 of the DRCA was thus not
applicable; there was no relationship of landlord and tenant
between the parties. The period of one year available after the
death of statutory tenant to heirs who are not financially
dependent upon the deceased was long since over. The
defendant being an unauthorized tenant was rightly ordered to
be evicted. The finding in the impugned judgment is perverse.
16 Substantial question of law is answered in favour of the
appellants and against the respondent. Appeal is allowed. Suit of
the plaintiffs stands decreed.
INDERMEET KAUR, J.
MAY 24, 2011
a
