Mallo Devi vs Naraini Devi Thr.L.Rs
2012 Latest Caselaw 3503 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Date of Judgment:25.05.2012


+                      CRP No.684/2003

MALLO DEVI                                    ..... Petitioner
                           Through    Mr. Hamid S. Shekh, Adv.

                  versus


NARAINI DEVI THR.L.R'S                        ..... Respondent
                   Through            None.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

1 Impugned judgment is dated 11.3.2003; eviction petition filed by

the landlady Mallo Devi seeking eviction of her tenant Narainee Devi

under Section 14(1)(e) of the Delhi Rent Control Act (hereinafter

referred to as the DRCA) had been dismissed.

2 Record shows that the present eviction petition had initially been

filed on the ground under Section 14D of the DRCA but thereafter with

the permission of the court it had been converted to a petition under

Section 14(1)(e) of the DRCA. The need of the landlady was her

bonafide need; contention was that one room was let out to the husband

of Narainee Devi for residential purpose; this was in House No.1300,

Bagichi Ramchnader, Gali Santrason, Paharganj, Delhi. After the death

of the original tenant namely Jawla Prasad, Narainee Devi his widow

and her two sons and four daughters continued to occupy the property.

After the death of Narainee Devi her aforenoted children have been

brought on record; her two sons are in possession of the tenanted

property (depicted in red colour in the site plan). The bonafide need has

been disclosed in para 8 of the eviction petition. Contention is that the

petitioner/landlady is a widow; premises had been let out by her

husband; she has become the exclusive owner of the said property. The

landlord has no issue of her own but during the life time of her husband

she had custody of two of her nephews namely Prem Chand and Deep

Chand (sister‟s sons) with her; they were assisting her husband in his

who used to drive a "ghora gari"; these two children namely Prem

Chand and Deep Chand had been brought up by the landlady and her

husband and since then they have been living with them; after the death

of her husband the landlady along with her two sons who are her support

system continued to live with her; the sons have since got married and

each of them has two children; accommodation presently available with

the landlady is only one room, one store room and one kitchen; this has

been depicted in yellow colour in the site plan. The family of the

petitioner has grown comprising of herself, her nephews Prem Chand

and Deep Chand; their wives and their four children. One room is

required for herself; two rooms are required for Prem Chand and his

children; two rooms are required for Deep Chand and his family; the

family also require a drawing room, baithak room and pooja room;

present accommodation is insufficient. Accordingly the present eviction

petition has been fined on the ground of bonafide requirement.

3 Leave to defend had been granted and written statement had been

filed by the tenant; preliminary contention was that there is no

relationship of landlord and tenant; all the legal heirs of late Jawla

Prasad had not been joined and as such the petition is bad for non-

joinder of necessary parties; contention being that the accommodation

presently available with the landlady is four rooms and not one room

and kitchen as has been alleged by her; this accommodation is sufficient

for them; she also owns two other properties; one in Mandwali and the

another in Mohalla Nabi Karim which are lying vacant.

4 Oral and documentary evidence was led by the respective parties.

Five witnesses were examined by the petitioner. AW-1 was the landlady

herself; she has reiterated that she is the owner of the suit premises; her

mother was the previous owner and after the death of her mother her

father became the owner of the suit property and he had transferred the

property in her name by a Sale deed (Ex.AW-1/1) which has been

proved in her testimony. Site plan had been proved as Ex. AW-1/2.

Ration Card Ex.AW-1/3 to Ex. AW-1/4 had been proved on record to

show that Prem Chand and Deep Chand are living with her; her

contention was that there are three rooms in the property; her need is

three rooms for herself and two rooms each for her two sons and their

family, a pooja room and a baithak are also required; present

accommodation available with her is insufficient; she has no other

residential accommodation suitable for her requirement. In her cross-

examination she admitted that she had brought up Deep Chand and

Prem Chand; Prem Chand sells tea and Deep Chand is doing work of a

helper and sometime works with the horses. She denied the suggestion

that her husband was not doing the work of "ghora gari"; she deposed

that her family comprises of Prem Chand and Deep Chand who are both

married; Prem Chand has one daughter and one son so also Deep chand

who has one son and one daughter; after the filing of the eviction

petition four more children had been born into the family of the Prem

Chand who are all daughters; similarly three more children had been

born in the family of Deep Chand who are two daughters and one son.

The birth certificates of children of Deep Chand and Prem Chand AW-

1/1 to AW-1/7 had been placed on record; so also school certificates of

the other children namely Jitu, Reena (children of Prem Chand) and

Suraj and Nirmala (children of Deep Chand). She had deposed that on

the ground floor there are two rooms and one store of which one room is

in her possession; store is used for storing household articles; the second

room is in possession of Deep Chand and his family; on the first floor

there are two rooms marked L and M which are in possession of Prem

Chand and his family and herself. AW-2 was a neighbor; he had

deposed on the lines of the petitioner; in his cross-examination he has

stated that there are four to five rooms in the premises i.e. three rooms

on ground floor and two rooms on the first floor. AW-2 (re-numbered

as AW-2 again), AW-3, AW-4 were summoned witnesses who had

brought the school certificates of Suraj, Kumari Reena, Kumari Pooja,

Jitender @ Jitu, AW-2 had proved the result card of Sangeeta, Nirmla

and Geeta all documents evidencing the fact that the children of Deep

Chand and Prem Chand were residents of House No.1300, Bagichi

Ramchnader, Gali Santrason, Paharganj, Delhi i.e. the place where

Mallo Devi, the landlady is living; substantiating her submission that her

family is living with her. AW-5 has proved the site plan as Ex. AW-1/8.

Per contra, respondent had produced one witness in evidence. His

testimony was to the effect that the suit property is a trust property;

Deep Chand and Prem Chand are not the children of Mallo Devi but

they are tenants in the premises; his contention is that the

accommodation presently available with the landlady is sufficient as

there are four rooms on the ground floor and two rooms on the first

floor.

5 On the basis of the aforenoted evidence adduced before the trial

court, the trial court had returned a finding that the accommodation

presently available with the petitioner is sufficient for her need; court

had noted that the requirement of the petitioner is seven rooms and she

has sufficient accommodation with her; her petition was accordingly

dismissed.

6 Vehement arguments have been addressed by the petitioner. None

has appeared for the respondent; none had appeared on the earlier date

as well.

7 Record has been perused. The ARC has returned all findings in

favour of the landlady except the issue on the sufficiency of the

accommodation.

8 On the question of ownership (which has been contested by the

tenant) the court had noted that the deposition of AW-1 (landlady) that

after the death of her mother her father became the owner of the

property who had transferred the same in her favour by way of sale deed

Ex. AW-1/1 establishes her status as owner/landlady. The letting out

purpose was also residential. The submission of the tenant that Prem

Chand and Deep Chand had not been adopted by the landlord but were

tenants in the property also did not find favour with the ARC who had

returned a fact finding that these two sons are a part of her family;

Court had also taken into account the family members of the two sons

namely Prem Chand and Deep Chand yet had held that the

accommodation presently available is sufficient for her need.

9 Record shows that no dispute has been raised about the members

of the family of the landlady, landlady is a widow; she has two sons

Prem Chand and Deep Chand; both of whom are married and had two

children each on the date of the filing of the eviction petition. It is also

not in dispute that after the filing of the eviction petition certain

subsequent events have taken place which include the fact that Deep

Chand was blessed with three children and Prem Chand was blessed

with four daughters; grand children of the landlady who were initially

four in number have now swelled to 11. These subsequent happenings

are admitted facts; thus the family of the landlady has enlarged. One

room is required for herself and two rooms for each of her two sons, a

guest room and baithak is also a necessity. Trial court had in this

eventuality had wrongly noted that the need of the landlady is only

seven rooms; even as per the calculation it would be eight rooms. The

family of Deep Chand (besides himself and his wife) includes five

children for which a minimum of two rooms is the requirement;

similarly the family of Prem Chand comprises of six children of one son

and five daughters; a minimum of three bed rooms is required for

them. Thus the family of the landlady requires a minimum

six bed rooms besides a drawing room/a baithak/a guest room and a

pooja room. Fact finding returned by the trial court is that the landlord

has seven rooms; presuming this to be the factual position even then this

accommodation falls short. That apart the trial court had clearly mis-

read the evidence. It had mis-calculated the figures. The landlord has

catergorically stated that she has two rooms, one store on the ground

floor of which the store is used for storing household articles which

factum is not in dispute. Thus she has only two rooms on the ground

floor. The third room on the ground floor („D‟ and shown as colourless

in the site plan) is with a tenant. Her further deposition is categorical to

the effect that there are two rooms on the first floor one room of which

is with the family of Prem Chand and the other is only a tin shed. On

both the floors there are improvised areas which are being used for bath

room/ latrine and kitchen. The rooms („H‟, „I‟ and „J‟ shown as

colourless in the site plan) are with the tenant. Accommodation

available with the landlady is thus four rooms of which are is a tin shed

and a store. This is clear from her deposition whose credibility has not

been destroyed in the cross-examination. This is also clear from the site

plan Ex. AW-1/8.

10 In this background eviction petition having been dismissed suffers

from an infirmity. Eviction petition decreed.

11    Petition disposed of.



                                                INDERMEET KAUR, J
MAY 25, 2012
nandan