Delhi High Court

Ratan Singh (Deceased) Th: His ... vs Shanti Devi on 30 April, 2012

Author: Indermeet Kaur

$~a-51
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment:30.04.2012


+     RC.REV. 186/2012 & CM Nos.7766-67/2012


      RATAN SINGH (DECEASED) TH: HIS LEGAL
      REPRESENTATIVES                ..... Petitioner
                    Through: Mr.Shamsad Ali, Adv.

                   versus


      SHANTI DEVI                               ..... Respondent

Through: Nemo.

CORAM:

HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR (oral)

1 Impugned order is the order dated 20.7.2011; eviction petition

filed by the landlord Shanti Devi seeking eviction of her tenant Rattan

Singh had been decreed; application seeking leave to defend filed by the

tenant had been declined.

2 Record shows that the present eviction petition has been filed on

the ground of bonafide requirement. Contention is that the petitioner is

the owner and landlord of the disputed premises which comprised of

two rooms, kitchen, bath, latrine room with open courtyard (as depicted

in the red colour in the site plan) forming a part of the property bearing

No.8437, Arya Nagar, Pahar Ganj, New Delhi; petitioner is stated to be

the owner of the suit premises having purchased it for a consideration

from the earlier owner Chet Ram; the respondent is a tenant @ Rs.17/-

per month; premises are required by the petitioner for her residence as

also for the residence of her family members who are dependant upon

her for their accommodation; the accommodation presently available

with the petitioner and her family members is insufficient; it comprises

of one big room and one small room; the small room is used as a store

room while the big room is being used for residence by the husband of

the petitioner; as such because of the paucity of accommodation the

petitioner has taken on rent a flat bearing No.389, Sector-6, Rohini,

Delhi built up on an area of 26 sq. yards for used of his son at the

monthly rent of Rs.4000/-. The family of the petitioner comprises

herself, her husband, three daughters, a married son and daughter-in-law

and two grandchildren aged 6 years and 7 months; because of the

aforenoted size of the family the accommodation available with the

petitioner cannot accommodate the family of the petitioner; the tenant is

aware of the fact that the son of the petitioner is residing in a tenanted

house who is dependent upon her for his accommodation. Present

eviction petition has accordingly been filed.

3 The site plan depicting the size of the property which is in

occupation of the tenant present has been placed on record.

4 Application for leave to defend had been filed. The main ground

urged by the tenant is that the petitioner is neither the owner or the

landlady of the suit premises; contention is that Phool Chand was the

original owner who had let out the property to the tenant @ Rs.17/- per

month; after his death his son Chet Ram had become the owner; it was

denied that Chet Ram had sold this property in favour of the present

petitioner; tenant had attorned in favour of the present landlord;

contention is that documents filed by the petitioner are forged ; premises

are in dilapidated condition; present petition was filed malafide.

5 The corresponding paras of the reply to the application seeking

leave to defend have been perused. The averments made in the

application seeking leave to defend have been vehemently denied.

6 The main bone of contention is the status of the landlord as

owner/landlord. There is dispute to the factum that the original owner

of the suit property was Phool Chand; after his death Chet Ram his son

had become the owner of the suit property. Rent receipts issued by the

present petitioner/tenant namely Rattan Singh in favour of Chet Ram

have been placed on record; it is not in dispute that Rattan Singh had

attorned in favour of Chet Ram. The petitioner has claimed ownership

qua the suit property; the tenant had denied it. It is the case of the tenant

that the documents relied upon by the present petitioner claiming

purchase of this property from Chet Ram are forged documents. The

documentary evidence placed on record substantiating the stand of

Shanti that she is the owner of the suit premises are all dated

15.10.1985; they are an agreement to sell, receipt and a registered will

dated 20.5.1987. It is also not in dispute that inter se litigation are

pending between the parties; a suit for permanent injunction had been

filed by the present landlord Shanti against Rattan Singh in which

judgment dated 19.3.1996 was delivered. This judgment is an admitted

document; although the certified copy of the said judgment could not be

placed on record as the record had purportedly been destroyed yet this

judgment (as noted supra) has an admitted finding arrived at by the Civil

Judge against which no appeal had been filed by either party; that

judgment has since attained a finality. This judgment clearly states that

Chet Ram had come into the witness box and he had himself deposed on

oath that he had sold this suit property to the present landlord Shanti and

as such the objection now raised by the tenant that Shanti is not the

owner/landlady of the aforenoted suit property is an objection clearly

with any merit; it raises no triable issue.

7 Time and again the Apex Court has had an opportunity to discuss

the concept of ownership in pending proceedings under Section 14(1)(e)

of the DRCA. In (1987) 4 SCC 193 Smt. Shanti Sharma & Ors. Vs.

Ved Prabha & Ors the Apex Court had held as follows:

"The word 'owner' has not been defined in this Act and the word 'owner' has also not been defined in the Transfer of Property Act. The contention of the learned Counsel for the appellant appears to be is that ownership means absolute ownership in the land as well as of the structure standing thereupon. Ordinarily, the concept of ownership may be what is contended by the counsel for the appellant but in the modern context where it is more or less admitted that all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Govt. or the authorities constituted by the State and in this view of the matter it could not be thought of that the Legislature when it used the term 'owner' in the provision of Section 14(1)(e) it thought of ownership as absolute ownership. It must be presumed that the concept of ownership only

will be as it is understood at present. It could not be doubted that the term 'owner' has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act."

8 In 1995 RLR 162 Jiwan Lal Vs. Gurdial Kaur & Ors. a Bench of

this Court while dealing with the concept of ownership in a pending

eviction petition under Section 14(1)(e) of the DRCA had noted as

follows:

"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioner. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."

9 The bonafide requirement of the landlord has also been proved.

The site plan shows that there are only two small room which are

presently available with the petitioner; the size of the family of the

petitioner is also not in dispute; she has her husband, three daughters,

one son, a daughter-in-law and two grand children. The tenant has not

disputed the size of the family of the petitioner. It is also not in dispute

that the married son of the petitioner is dependent upon her for his

accommodation; he has taken a flat on rent to accommodate his family;

the family of the petitioner comprising of nine members cannot thus fit

into the aforenoted two room which is the only accommodation

available with them and they have no another reasonably suitable

accommodation.

10 It is not for the tenant to dictate the terms to the landlord; this is

also not the business of the court. The landlord is the best judge of his

requirement.

11 Record also show that the contention of the tenant that Flat

No.177-178 , Janta Flat, Sector-6, Rohini is owned by the petitioner has

been vehemently denied. Flat no.177 is owned by Nathhi Lal, Flat

No.178 had been sold by petitioner in the year 1998 to which fact there

is no dispute; the documents to substantiate this submission i.e. GPA,

agreement to sell, affidavit and receipt dated 18.3.1998 had also been

filed on record to substantiate the submission that Flat No.178 had been

sold to Bhupender Singh in 1998. This submission also raises no triable

issue.

12 Petitioner has been able to satisfy the court that her need for the

aforenoted premises is bonafide; no triable issue has arisen on any

count; leave to defend cannot be granted in a routine or in a mechanical

manner. This has been reiterated by the Apex Court time and again. The

Supreme Court in Prativa Devi (Smt.) Vs. T.V. Krishnan (1996) 5SCC

353 had held in this context inter alia noted as:-

"The landlord is the best judge of his residential requirement. He has a complete freedom in the matter. It is no concern of the courts to dictate to the landlord how, and in what manner, he should live or to prescribe for him a residential standard of their own."

13 In (1982) 3 SCC 270 Precision Steel & Engineering Works &

another Vs. Prem Devi Niranjan Deva Tayal the Apex Court had noted

that the prayer for leave to contest should be granted to the tenant only

where a prima-facie case has been disclosed by him. In the absence of

the tenant having disclosed a prima-facie case i.e. such facts as to what

disentitles the landlord from obtaining an order of eviction, the Court

should not mechanically and in routine manner grant leave to defend.

14 Unless and until a triable issue has arisen leave to defend cannot

be granted; if this is done the very purpose and import of the Section 25-

B of the DRCA will be given a go by; which was not the intent of the

legislature.

15 In this background impugned order decreeing the petition and