Sh. Om Prasad Sarin & Anr. vs Sh. Ajit Mehra & Ors.
2014 Latest Caselaw 6472 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+ RC.REV.No.266/2012 & C.M.Nos.10945/2012, 17918/2013,
  8628/2014, 8629/2014
%                                          04th December, 2014

SH. OM PRASAD SARIN & ANR.                  ......Petitioners
                  Through: Mr.R.P.Sharma Advocate.


                          VERSUS

SH. AJIT MEHRA & ORS.                                 ...... Respondents

                   Through:              Mr.Pramod Kumar Singhal,
                                         Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This rent control revision petition is filed under Section 25B(8) of

the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act')

impugning the judgment of the Additional Rent Controller (ARC) dated

09.12.2011 by which the ARC has dismissed the bonafide necessity

eviction petition filed by the petitioners/landlords with respect to the

suit/tenanted premises comprising of five rooms, one drawing room, two

kitchens on the ground floor and one tin shed on the first floor of property

bearing no.4538, Daiwara, Nai Sarak, Delhi-6 as shown in red colour in the

site plan annexed along with the eviction petition. The eviction petition

has been dismissed after evidence was led by both the parties.

2. The original eviction petition was filed by the landlady Smt.Munni

Devi Sarin widow of late Sh.Amba Prasad Sarin for her own requirement

as also the requirement of her two sons, one of whom was unmarried. The

married son Sh.Rattan Prasad Sarin was having besides himself his wife,

one daughter and two sons. When the eviction petition was filed in the

year 1991, the two sons of Sh. Rattan Prasad Sarin were 10 years and 9

years of age, and therefore today these two sons would be 33 years and 32

years respectively. I am informed by the counsel for the petitioners that

these two sons of Sh.Rattan Prasad Sarin are now in fact married.

3(i) Besides the need for the landlady, her unmarried son Sh.Om Prasad

Sarin and married son Sh.Rattan Prasad Sarin and his family, need was

also projected for the son Sh.Raghubir Prashad Sarin, who was residing in

Mathura and who has retired from a Gazetted post of a District Extension

Executor, Family Planning Department in the State of U.P and wanted to

shift to Delhi. Need was also projected for another son Sh.Ram Parshad

Sarin, who was posted in Agra and was to retire in February 1993, and who

also wanted to come to Delhi.

(ii) The landlady also had two another sons Dr.J.P.Sarin and

Sh.K.P.Sarin who lived away from Delhi and frequently visited the

landlady, and therefore two other rooms/guest rooms were also required for

these two sons and their families.

(iii) The landlady was about 85 years of age when the eviction petition

was filed and she pleaded that she required the tenanted premises for her

sons to stay with her and for looking after her also.

(iv) During the pendency of the eviction proceedings, the landlady

expired and she was substituted by her sons and the daughter. The eviction

proceedings however continued because the projected need in the eviction

petition was not only for the landlady but also for her family members

including the unmarried son Sh.Om Prasad Sarin and the married son

Sh.Rattan Prasad Sarin, the need for two other sons Sh.Raghubir Prashad

Sarin and Sh.Ram Parshad Sarin who wanted to come and settle in Delhi

from Mathura and Agra and the need of guest rooms for other two sons

who were living away from Delhi.

4. The respondents, who are the legal heirs of the original tenant

Sh.Shiv Narain Mehra contested the eviction petition by denying the

ownership of the landlady Smt.Munni Devi Sarin. It was also stated by the

respondents/tenants that the two sons of the landlady posted at Mathura

and Agra did not want to come and settle in Delhi. The landlady was also

stated to have sufficient alternative accommodation in a property bearing

no.4555, Kucha Bibi Gohar, Charkewalan, Delhi-6, and which as per the

respondents/tenants comprised of five rooms. The landlady was also stated

to have two rooms and a kitchen on the first floor of the property bearing

no. 4554, Kucha Bibi Gohar, Charkewalan, Delhi-6, and to which the

landlady stated that her son-in-law was a tenant in the same and he could

not be evicted on account of the close and sensitive relations.

5(i) After the pleadings were complete, parties led evidence. On behalf

of the landlady Smt.Munni Devi Sarin, depositions were given by PW-1

Sh.Om Prasad Sarin, PW-2 Sh.Ram Prasad Sarin (who did not appear for

cross-examination and whose testimony therefore cannot be looked into)

and PW-3 Sh.K.P.Sarin being the son of the landlady, who has retired and

was living in a rented house in Lucknow and was wanting to come to

Delhi.

(ii) On behalf of the respondents/tenants, Sh.Jitender Narain Mehra, son

of late Sh. Shiv Narain Mehra deposed as RW-1.

6. In a bonafide necessity eviction petition under Section 14(1)(e) of

the Act, three aspects are required to be established for decreeing of the

petition. Firstly there must exist the relationship of landlord and tenant

between the parties and that the landlord is the owner of the property.

Second requirement is that the suit/tenanted premises are required for the

bonafide need of the landlord and/or his family members. The third aspect

to be examined is whether the landlord has alternative suitable

accommodation.

7(i) On the aspect that the original landlady Smt.Munni Devi Sarin was

the owner of the suit/tenanted property, this aspect was held in favour of

the petitioners/landlords holding that admittedly the husband of Smt.Munni

Devi Sarin, late Sh.Amba Prasad Sarin was the owner of the suit/tenanted

property, and therefore his widow would surely be at best the co-owner of

the suit/tenanted property. The case of the respondents/tenants that the

property was given to a temple was disbelieved. The present petitioners

are the sons and the daughter of Smt.Munni Devi Sarin, and therefore the

children of late Sh.Amba Prasad Sarin, and being the legal heirs of late

Sh.Amba Prasad Sarin, they would also hence be the co-owners of the

suit/tenanted property. The relevant discussion with respect to the

petitioners/landlords proving their ownership also gives a finding for the

aspect that the ownership of the property in the name of late Sh.Amba

Prasad Sarin, husband of Smt.Munni Devi Sarin was proved on account of

mutation of the suit/tenanted property in favour of late Sh.Amba Prasad

Sarin. The house tax receipts for the years 1961, 1962, 1965, 1968, 1973

and 1974 were proved and exhibited as EXs. PW-1/8 to PW-1/13.

(ii) I completely agree that with the findings and conclusions of the

ARC holding that the petitioners are the owners/landlords of the

suit/tenanted property, and which relevant observations of the ARC in the

impugned judgment dated 9.12.2011 read as under:-

  " A.    OWNERSHIP AS WELL AS RELATIONSHIP OF LANDLORD
          AND TENANT.

(i) The contesting respondent has denied the ownership as well as relationship of landlord and tenant between the parties stating that the father of the respondent took the possession of the suit property when the Kalibari temple was shifted about 50 years back. In the W.S. it has not been disclosed in which capacity the father of the respondent took the possession of the suit property. However, in his cross examination RW-1testified that his father became the owner of the suit property but he has no documents of transfer of ownership executed in favour of his father. It is further testified that he does not know who was the owner of Kalibari i.e. the suit premises nor he has personally seen the Kalibari temple himself. It is further testified that his elder brother Sh.S.N.Mehra told him that earlier there existed a kalibari temple. It is further testified that the property in question is not assessed to the house tax and denied the suggestion that the suit property is assessed in the name of Amba Prasad Sarin in the house tax department.

(ii) On the other hand, in the cross examination of PW-1, the suggestions have been put that the petitioner is not the owner of the suit property nor Sh.Amba Prasad Sarin and the house tax receipts are forged and fabricated and PW-1 has denied those suggestions. The

petitioner has placed reliance upon the certified copy of the judgment in respect of the suit property of the year 1910 which has been exhibited as Ex. PW-1/2 and denied the suggestion that said document is not in respect of the suit property. Nothing has been placed on record to contradict the correctness of the said documents or that that the said document is not in respect of the suit property by the respondent. Though RW-1 has denied the correctness and signatures upon the letters Ex. PW-1/5 and Ex. PW-1/7 disputing the signatures of the 'Author' but when in cross examination, he was asked as to whether he can produce the documents pertaining to signatures of the author of those letters, he testified that he can not produce though he admitted that the authors of those letters are well educated. Even no witness has been summoned on behalf of the respondent to corroborate their allegation that the house tax receipt/bills in the name of Mr. Amba Prasad Sarin is forged and fabricated. Though the respondents have denied that the petitioner was the wife of late Sh. Amba Prasad Sarin but has not denied that the legal heirs subsequently brought on record are not the sons and daughters of Late Sh. Amba Prasad Sarin and even admitted that PW-1 is the son of Late Amba Prasad Sarin.

(iii) In the light of aforesaid discussions, this Court is of the opinion that in a petition U/s 14(1)(e) of the D.R.C. Act, the petitioner is required to prove that they are more than tenants and there is no requirement that they must prove that they are absolute owner of the suit property. Thus, it has been proved on record on preponderance of probability that petitioner is the owner of the suit property qua the respondent and there is relationship of landlord and tenant between the parties."

(iii) Besides the aspect that the ARC has rightly concluded that the

petitioners are the owners/landlords, it is required to be noted that the

ownership which has to be proved in an eviction petition is only for

showing that the petitioners/landlords have a better title than the

respondents/tenants and which position has been clearly established

because not only the house tax receipts are filed and proved, the

respondents/tenants have failed to prove that if not the petitioners then who

else is the owner of the suit/tenanted property ie who else other than late

Sh.Amba Prasad Sarin and thereafter the present petitioners/landlords

were/was the owners/owner and in what manner.

(iv) Also, it is to be noted that every owner is automatically a landlord

in view of the definition of 'landlord' contained in Section 2(e) of the Act,

which states that a person who is entitled to receive the rent is also a

landlord and since a co-owner is entitled to receive the rent, a co-owner is

always a landlord. I therefore hold that the court below has rightly

concluded the aspect of existence of relationship of landlord and tenant

between the parties as also the aspect of ownership of the suit/tenanted

property in favour of the petitioners/landlords.

8 (i). On the aspect of bonafide need, even after the death of the landlady

Smt.Munni Devi Sarin, the following family members (who are also the

owners-landlords) exist being the unmarried son Sh.Om Prasad Sarin, the

married son Sh.Rattan Prasad Sarin and who has two sons who are now

aged about 33 and 32 years, and who as per the counsel for the petitioners

are also married. Therefore, for the need of Sh.Om Prasad Sarin and the

family of Sh.Rattan Prasad Sarin, a total of four bedrooms will be required

being one room for Sh.Om Prasad Sarin, one room for Sh.Rattan Prasad

Sarin and his wife and two rooms for the two married sons of Sh.Rattan

Prasad Sarin. Also, in addition to the four bedrooms, two other bedrooms

will be required for the children of the two married sons of Sh.Rattan

Prasad Sarin, noting that however though no evidence exists on record with

respect to marriage of the two sons of Sh.Rattan Prasad Sarin as also they

having any children, considering that this is a very old case i.e having been

filed more than 23 years back, I accept the contention of the counsel for the

petitioners with respect to the marriage of the two sons of Sh.Rattan Prasad

Sarin and their having children. Therefore, for Sh.Om Prasad Sarin and

Sh.Rattan Prasad Sarin, a total of six bedrooms will be required.

(ii) In addition to the six bedrooms, there will be required one drawing

room, one dining room, one store room and one guest room for the large

family, which besides Sh.Om Prasad Sarin and Sh.Rattan Prasad Sarin

includes two married sons who live away from Delhi and two married sons

who were living in Mathura and Agra.

(iii) All in all therefore for the need of the landlords and their families, a

total of ten bedrooms, one drawing room, one dining room, one store room

and one guest room will be required i.e a total of 14 rooms. As compared

to the need of 14 rooms, the landlords only have a total of five bedrooms in

the property bearing no. 4554, Kucha Bibi Gohar, Charkewalan, Delhi-6,

and therefore the petitioners/landlords have clearly established their

bonafide need.

9. On the aspect of alternative suitable accommodation, what was

argued on behalf of the respondents/tenants is that there is a property being

house no.4555, Kucha Bibi Gohar, Charkewalan, Delhi-6, which is an

alternative suitable accommodation. Therefore this aspect has to be

examined whether this property 4555 which is stated to comprise of five

rooms would be an alternative suitable accommodation.

10. As per the evidence led on behalf of the petitioners/landlords, and

who filed the photographs of this 4555 property, which have been marked

as Mark-A1 to Mark-A5, this property is in a shabby condition. The ARC

has rejected the stand of the petitioners/landlords and held that this

property being house no.4555 is available, and therefore the same will be

an alternative suitable accommodation by making the following

observations in the impugned judgment dated 9.12.2011:

      "                     xxxxx

      (ii)     Though in the petition, the petitioner has not disclosed that she

is also the owner of property no 4555 (supra), but in rejoinder, she

disclosed that she is owner of the said property, but alleged that the said premises is in shabby condition and one Smt. Kaushalya is in occupation of one room therein. In his chief examination, PW-1 reiterated the same facts and deposed that the ground floor of the said property has been photographed which are marked as Mark A1 to A5. However, nothing has been disclosed as to when the said photographs were taken and no negatives of the said photographs have been filed on record nor the photographer has been produced as witness to prove those photographs. In this cross examination PW-1 has admitted that the property no. 4555 (supra) belongs to him along with his brothers and two rooms are situated in this property on the ground floor and two rooms including tin shed are in existence on the first floor and there is only one tenant namely Smt. Kaushalya residing on the first floor in the tin shed and denied the suggestion that the said property is consisting of five rooms, kitchen, latrine, bathroom and store. He further denied the suggestion that the property is in good condition and is not in a shabby condition. However, deposition regarding construction in respect of property no. 4555 (supra) is contrary to the site plan put on behalf of the petitioner to the respondent in his cross examination which was marked as Mark-X on 07/04/2003 wherein three rooms have been shown on the ground floor and only one tin shed has been shown on the first floor in the said property and, thus, from the testimony available on record as well as from the site plan marked as Mark-X, it can be safely held that there are five rooms in the said property no. 4555 (supra)."

11. In my opinion, the ARC has clearly fallen into a gross error and

committed a manifest illegality and perversity, inasmuch as firstly the

photographs should be taken to have been proved and ought to have been

not marked because it is not mandatory in all cases to necessarily file

negatives unless and until the photos are shown to be forged photos. Once

the photographs are proved which show the said property in a shabby

condition, the petitioners/landlords are not expected to re-construct the

same by incurring expenses inasmuch as another suitable accommodation

i.e suit/tenanted premises are available with them for their residence. It is

not the law that the landlords must spend money and re-construct a

dilapidated property, and which should be then taken as an alternative

suitable accommodation. In fact the law states that the landlords need not

spend money over a property required to be re-constructed and re-built, but

they can instead seek eviction of the tenant from the tenanted property for

the bonafide need of the landlords. Since the photographs should not be

marked as Mark-A1 to Mark-A5, the photographs marked as Mark-A1 to

Mark-A5 are now taken as exhibited and should be read as Ex.PX-1 to

Ex.PX-5.

12. Therefore, the premises being house no.4555 is not an alternative

suitable accommodation and cannot be considered for satisfying the needs

of the family members of the petitioners/landlords.

13. I may state that at the conclusion of the arguments, counsel for the

petitioners/landlords very vehemently argued that the suit/tenanted

property is lying vacant since long and the same is not being used by the

respondents/tenants. In fact the tenanted premises has become a dustbin for

people to throw waste and garbage into the same, and inspite of non-user

the respondents/tenants are illegally not vacating the same hoping to

extract consideration from the petitioners/landlords. I may note that the

respondents/tenants have not filed any document whatsoever before the

ARC below to show that the premises are continued to be used by them,

and therefore there is no reason for me to disbelieve the emphatic stand of

the petitioners/landlords with respect to the deplorable condition of the

suit/tenanted premises, and that it has also become a garbage dump on

account of non-user.

14. In view of the above, the present petition is allowed and the

impugned judgment dated 9.12.2011 of the ARC is set aside. The bonafide

necessity eviction petition will stand decreed with respect to the

suit/tenanted property comprising of five rooms, one drawing room, two

kitchens on the ground floor and one tin shed on the first floor in the

property bearing no.4538, Daiwara, Nai Sarak, Delhi-6, and especially as

shown in the site plan which is proved and exhibited as Ex.PW-1/14. The

respondents/tenants will be entitled to the statutory period of six months to

vacate the suit/tenanted premises. Parties are left to bear their own costs.

VALMIKI J. MEHTA, J DECEMBER 04, 2014 KA