DELHI HIGH COURT
TAHIRA BEGUM VS. SUMITAR KAUR & ANR.
DATED : 12.01.2010
Summarised
Judgement (Scroll for Complete Judgement)
Judgement (Scroll for Complete Judgement)
Facts of the
Case:
Case:
The
petition has been preferred by a landlord aggrieved from the order of the
Additional Rent Controller granting leave to the respondents/tenants to contest
the petition for eviction filed by the landlord under Section 14 (1)(e) of the
Act. One of the requirement of Section 14 (1)(e) is of the landlord also being
the owner of the tenancy premises.
petition has been preferred by a landlord aggrieved from the order of the
Additional Rent Controller granting leave to the respondents/tenants to contest
the petition for eviction filed by the landlord under Section 14 (1)(e) of the
Act. One of the requirement of Section 14 (1)(e) is of the landlord also being
the owner of the tenancy premises.
The
Additional Rent Controller has granted leave to defend to the tenants only on
the ground that the pleas of the respondents/tenants qua ownership raise a
triable issue.The petitioner/landlord along with the petition and the
respondents/tenants along with reply to the petition before this court have
filed as annexures thereto, copies of the record of the Rent Controller sought
to be relied upon by them and as such need is not felt to call for the records.
Additional Rent Controller has granted leave to defend to the tenants only on
the ground that the pleas of the respondents/tenants qua ownership raise a
triable issue.The petitioner/landlord along with the petition and the
respondents/tenants along with reply to the petition before this court have
filed as annexures thereto, copies of the record of the Rent Controller sought
to be relied upon by them and as such need is not felt to call for the records.
Observation of
Court:
Court:
The
petitioner to be the owner of the tenancy premises within the meaning of
Section 14(1)(e) of the Act and there being no other ground as aforesaid on
which leave to contest is sought, this petition succeeds. The order of the
Additional Rent Controller granting leave to contest the petition for eviction
to the respondents is set aside. The application of the respondents for leave
to contest is dismissed and the petitioner having found to have satisfied all
the ingredients of Section 14(1)(e) of the Act, an order of eviction is passed
in favour of the petitioner and against the respondents with respect to the
premises as described in paras 1,2,8 & 20 of the petition for eviction and
shown in the site plan filed with the petition for eviction.
petitioner to be the owner of the tenancy premises within the meaning of
Section 14(1)(e) of the Act and there being no other ground as aforesaid on
which leave to contest is sought, this petition succeeds. The order of the
Additional Rent Controller granting leave to contest the petition for eviction
to the respondents is set aside. The application of the respondents for leave
to contest is dismissed and the petitioner having found to have satisfied all
the ingredients of Section 14(1)(e) of the Act, an order of eviction is passed
in favour of the petitioner and against the respondents with respect to the
premises as described in paras 1,2,8 & 20 of the petition for eviction and
shown in the site plan filed with the petition for eviction.
Judgement:
However, in
accordance with law, the respondents are granted six months time to vacate the
premises. The order of eviction shall be unexecutable for a period of six
months from today. No order as to costs.
accordance with law, the respondents are granted six months time to vacate the
premises. The order of eviction shall be unexecutable for a period of six
months from today. No order as to costs.
—————————————————
DELHI HIGH COURT
TAHIRA BEGUM VS. SUMITAR KAUR & ANR.
DATED : 12.01.2010
Author : Rajiv Sahai
Endlaw
Endlaw
IN THE HIGH COURT OF
DELHI AT NEW DELHI
DELHI AT NEW DELHI
CM(M) 1279/2008
Date of decision :12th
January, 2010
January, 2010
TAHIRA BEGUM
…. Petitioner
…. Petitioner
Through: Mr. S.P. Jha,
Mr. Bipin Kumar Jha & Mr. C.
Mr. Bipin Kumar Jha & Mr. C.
Salvaraj, Advocates.
Versus
SUMITAR KAUR &
ANR. …..
Respondents
ANR. …..
Respondents
Through: Mr. Satya
Prakash Gupta, Advocate.
Prakash Gupta, Advocate.
CORAM :- HON’BLE MR. JUSTICE
RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the
judgment? Yes
judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be
reported Yes
reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. This petition,
originally preferred under Article 227 of the Constitution of India, was at the
time of hearing on 11th November, 2009 and vide order of that date converted
into a Revision petition under Section 25 B (8) of the Delhi Rent Control Act,
1958 and heard as such. The petition has been preferred by a landlord aggrieved
from the order of the Additional Rent Controller granting leave to the
respondents/tenants to contest the petition for eviction filed by the landlord
under Section 14 (1)(e) of the Act.
originally preferred under Article 227 of the Constitution of India, was at the
time of hearing on 11th November, 2009 and vide order of that date converted
into a Revision petition under Section 25 B (8) of the Delhi Rent Control Act,
1958 and heard as such. The petition has been preferred by a landlord aggrieved
from the order of the Additional Rent Controller granting leave to the
respondents/tenants to contest the petition for eviction filed by the landlord
under Section 14 (1)(e) of the Act.
One of the requirement of Section 14 (1)(e)
is of the landlord also being the owner of the tenancy premises. The Additional
Rent Controller has granted leave to defend to the tenants only on the ground
that the pleas of the respondents/tenants qua ownership raise a triable issue.
is of the landlord also being the owner of the tenancy premises. The Additional
Rent Controller has granted leave to defend to the tenants only on the ground
that the pleas of the respondents/tenants qua ownership raise a triable issue.
2. The
petitioner/landlord along with the petition and the respondents/tenants along
with reply to the petition before this court have filed as annexures thereto,
copies of the record of the Rent Controller sought to be relied upon by them
and as such need is not felt to call for the records.
petitioner/landlord along with the petition and the respondents/tenants along
with reply to the petition before this court have filed as annexures thereto,
copies of the record of the Rent Controller sought to be relied upon by them
and as such need is not felt to call for the records.
3. Sardar Nihal Singh
being the husband of the respondent no.1 and the father of the respondent no.2
was a tenant on the ground floor of House No.6059, Gali Haider Bux, Nawab Road,
Basti Harphool Singh, Sadar Bazar, Delhi (hereinafter called House No.6059)
under Sh. Karam Ilahi w.e.f. 22nd May, 1960 and at a rent of Rs.25/- per month.
Sh. Karam Ilahi died on 2nd October, 1970. The petitioner/landlady is the
daughter of said Sh. Karam Ilahi. The petitioner/landlady in or about the year
1999 instituted a petition for eviction (hereinafter called earlier petition
for eviction) of Sardar Nihal Singh on the ground of her requirement of the
premises for her own residence provided under Section 14(D) of the Act. It may
be mentioned that unlike Section 14(1)(e), under Section 14(D) the only
requirement is of being a landlady and there is no requirement of being the
owner.
being the husband of the respondent no.1 and the father of the respondent no.2
was a tenant on the ground floor of House No.6059, Gali Haider Bux, Nawab Road,
Basti Harphool Singh, Sadar Bazar, Delhi (hereinafter called House No.6059)
under Sh. Karam Ilahi w.e.f. 22nd May, 1960 and at a rent of Rs.25/- per month.
Sh. Karam Ilahi died on 2nd October, 1970. The petitioner/landlady is the
daughter of said Sh. Karam Ilahi. The petitioner/landlady in or about the year
1999 instituted a petition for eviction (hereinafter called earlier petition
for eviction) of Sardar Nihal Singh on the ground of her requirement of the
premises for her own residence provided under Section 14(D) of the Act. It may
be mentioned that unlike Section 14(1)(e), under Section 14(D) the only
requirement is of being a landlady and there is no requirement of being the
owner.
The petitioner/landlady in the earlier petition for eviction under
Section 14(D) of the Act claimed herself to the landlady. Sardar Nihal Singh denied
that the petitioner was the landlady and contended that the brothers of the
petitioner/landlady viz. Mohd. Haider Baksh & Mohd. Sultan were the
landlords. Though the earlier petition for eviction under Section 14 (D) of the
Act was dismissed vide order dated 17th August, 2004 of the Additional Rent
Controller inter alia on the ground that the premises having been not let out
by the petitioner/landlady or by her husband, she was not entitled to invoke
the ground of eviction provided under Section 14(D) of the Act and also on the
ground of the petitioner/landlady having not made out a case of requirement of
the tenancy premises; but in the said order, the petitioner/landlady was held
to be the landlady of the Sardar Nihal Singh qua the tenancy premises and also
held to be entitled to the rent from Sardar Nihal Singh. The
petitioner/landlady preferred RC Revision No.32/2005 to this Court against the
order of dismissal of the earlier petition for eviction.
Section 14(D) of the Act claimed herself to the landlady. Sardar Nihal Singh denied
that the petitioner was the landlady and contended that the brothers of the
petitioner/landlady viz. Mohd. Haider Baksh & Mohd. Sultan were the
landlords. Though the earlier petition for eviction under Section 14 (D) of the
Act was dismissed vide order dated 17th August, 2004 of the Additional Rent
Controller inter alia on the ground that the premises having been not let out
by the petitioner/landlady or by her husband, she was not entitled to invoke
the ground of eviction provided under Section 14(D) of the Act and also on the
ground of the petitioner/landlady having not made out a case of requirement of
the tenancy premises; but in the said order, the petitioner/landlady was held
to be the landlady of the Sardar Nihal Singh qua the tenancy premises and also
held to be entitled to the rent from Sardar Nihal Singh. The
petitioner/landlady preferred RC Revision No.32/2005 to this Court against the
order of dismissal of the earlier petition for eviction.
At the time of hearing
of the said Revision petition on 16th August, 2005, it was conceded by the
counsel for the petitioner/landlady that in view of the judgment of the Supreme
Court in Nathi Devi Vs. Radha Devi Gupta 2005 1 RCR 218 laying down that the
petition for eviction under Section 14 (D) could be maintained only where the
letting was by the landlady herself or by her husband, the petition for
eviction on that ground was not maintainable, since the premises had been let
out by the father of the petitioner/landlady.
of the said Revision petition on 16th August, 2005, it was conceded by the
counsel for the petitioner/landlady that in view of the judgment of the Supreme
Court in Nathi Devi Vs. Radha Devi Gupta 2005 1 RCR 218 laying down that the
petition for eviction under Section 14 (D) could be maintained only where the
letting was by the landlady herself or by her husband, the petition for
eviction on that ground was not maintainable, since the premises had been let
out by the father of the petitioner/landlady.
However, the counsel for the
petitioner/landlady contended that the findings of the Controller qua the
requirement of the tenancy premises by the petitioner may come in the way of
the petitioner/landlady preferring another petition for eviction on the ground
of her requirement of premises for her own residence under Section 14 (1)(e) of
the Act, in which there is no requirement of letting by the landlady or her
husband. The counsel for Sardar Nihal Singh contended that since the petition
for eviction under Section 14 (D) was not maintainable, the findings of the
Controller qua requirement shall not operate as res judicata; for the said
reason he had no objection against the findings of the Additional Rent
Controller qua bona fide requirement being set aside. On the said statement of
the counsel for the Sardar Nihal Singh, this court though dismissing the
Revision petition, set aside the findings of the Additional Rent Controller qua
requirement.
petitioner/landlady contended that the findings of the Controller qua the
requirement of the tenancy premises by the petitioner may come in the way of
the petitioner/landlady preferring another petition for eviction on the ground
of her requirement of premises for her own residence under Section 14 (1)(e) of
the Act, in which there is no requirement of letting by the landlady or her
husband. The counsel for Sardar Nihal Singh contended that since the petition
for eviction under Section 14 (D) was not maintainable, the findings of the
Controller qua requirement shall not operate as res judicata; for the said
reason he had no objection against the findings of the Additional Rent
Controller qua bona fide requirement being set aside. On the said statement of
the counsel for the Sardar Nihal Singh, this court though dismissing the
Revision petition, set aside the findings of the Additional Rent Controller qua
requirement.
4. The petitioner had
in the earlier petition for eviction under Section 14(D) of the Act claimed herself
to be the landlady by pleading that her father Karam Ilahi had during his
lifetime gifted the property to his sons Mohd. Haider Baksh & Mohd. Sultan;
that the said Mohd. Haider Baksh & Mohd. Sultan being the brothers of the
petitioners had vide oral gift dated 1st January, 1994 (and which is
permissible under the Mohammedan Law) gifted the property to the petitioner;
that the rent receipts w.e.f. February, 1997 were also issued to Sardar Nihal
Singh by the petitioner thorough her son/attorney.
in the earlier petition for eviction under Section 14(D) of the Act claimed herself
to be the landlady by pleading that her father Karam Ilahi had during his
lifetime gifted the property to his sons Mohd. Haider Baksh & Mohd. Sultan;
that the said Mohd. Haider Baksh & Mohd. Sultan being the brothers of the
petitioners had vide oral gift dated 1st January, 1994 (and which is
permissible under the Mohammedan Law) gifted the property to the petitioner;
that the rent receipts w.e.f. February, 1997 were also issued to Sardar Nihal
Singh by the petitioner thorough her son/attorney.
Sardar Nihal Singh had
contested the said claim of the petitioner by contending that there was no gift
of 1st January, 1994 by the brothers in favour of the petitioner; that to
constitute a valid gift, the same must be accompanied with the delivery of
possession of the property; that in the present case, there was no delivery of
possession, even constructive of the property, inasmuch as Mohd. Haider Baksh
& Mohd. Sultan who had been realizing rent from Sardar Nihal Singh had at
no time after 1st January, 1994 being the date of the oral gift given any
notice to Sardar Nihal Singh to attorn to the petitioner as landlady; that
there was no explanation as to why, if there was an oral gift on 1st January,
1994, Mohd. Haider Baksh & Mohd. Sultan continued to receive the rent till
January, 1997; that in fact the rent receipts w.e.f. February, 1997 also though
stated to have been issued by the petitioner through her son / attorney were
without knowledge of Sardar Nihal Singh, being in Urdu language and which
language was not known to Sardar Nihal singh. The petitioner rejoined by
contending that Sardar Nihal Singh was orally informed of the gift; that
between 1st January, 1994 and February, 1997 rent was collected by Mohd. Haider
Baksh & Mohd. Sultan on behalf of the petitioner; it was denied that Sardar
Nihal Singh did not know Urdu language.
contested the said claim of the petitioner by contending that there was no gift
of 1st January, 1994 by the brothers in favour of the petitioner; that to
constitute a valid gift, the same must be accompanied with the delivery of
possession of the property; that in the present case, there was no delivery of
possession, even constructive of the property, inasmuch as Mohd. Haider Baksh
& Mohd. Sultan who had been realizing rent from Sardar Nihal Singh had at
no time after 1st January, 1994 being the date of the oral gift given any
notice to Sardar Nihal Singh to attorn to the petitioner as landlady; that
there was no explanation as to why, if there was an oral gift on 1st January,
1994, Mohd. Haider Baksh & Mohd. Sultan continued to receive the rent till
January, 1997; that in fact the rent receipts w.e.f. February, 1997 also though
stated to have been issued by the petitioner through her son / attorney were
without knowledge of Sardar Nihal Singh, being in Urdu language and which
language was not known to Sardar Nihal singh. The petitioner rejoined by
contending that Sardar Nihal Singh was orally informed of the gift; that
between 1st January, 1994 and February, 1997 rent was collected by Mohd. Haider
Baksh & Mohd. Sultan on behalf of the petitioner; it was denied that Sardar
Nihal Singh did not know Urdu language.
5. The Additional Rent
Controller, in the earlier petition for eviction under Section 14 (D) of the
Act held the petitioner to be the landlady because Mohd. Haider Baksh &
Mohd. Sultan had appeared as a witness and confirmed the gift to the petitioner
on 1st January, 1994; it was held that a tenant/stranger could not challenge
the validity of the gift; that possession could be delivered subsequent to the
gift also and which had been done in the present case; that the brothers of the
petitioner had also in 1997 executed registered deeds of declaration confirming
/ affirming that they had gifted the property to the petitioner on 1st January,
1994; that the property also stood mutated in the records of the MCD in the
names of the petitioner. It was thus held that at least in 1997 the petitioner
became the owner of the property and the rent receipts with effect there from
were admittedly by the petitioner and thus on the date of institution of the
earlier petition for eviction under Section 14(D) of the Act on 10th May, 1999,
the petitioner was the landlady of the premises.
Controller, in the earlier petition for eviction under Section 14 (D) of the
Act held the petitioner to be the landlady because Mohd. Haider Baksh &
Mohd. Sultan had appeared as a witness and confirmed the gift to the petitioner
on 1st January, 1994; it was held that a tenant/stranger could not challenge
the validity of the gift; that possession could be delivered subsequent to the
gift also and which had been done in the present case; that the brothers of the
petitioner had also in 1997 executed registered deeds of declaration confirming
/ affirming that they had gifted the property to the petitioner on 1st January,
1994; that the property also stood mutated in the records of the MCD in the
names of the petitioner. It was thus held that at least in 1997 the petitioner
became the owner of the property and the rent receipts with effect there from
were admittedly by the petitioner and thus on the date of institution of the
earlier petition for eviction under Section 14(D) of the Act on 10th May, 1999,
the petitioner was the landlady of the premises.
6. The petitioner
during the pendency of the earlier petition for eviction under Section 14(D) of
the Act also instituted a suit for declaration of her title to the tenancy
premises; her two brothers Mohd. Haider Baksh & Mohd. Sultan and the tenant
Sardar Nihal Singh were impleaded as defendants to the suit. The said suit was
dismissed vide judgment and decree dated 15 th December, 2004 (i.e. shortly
after the order of the Additional Rent Controller in the earlier petition for
eviction under Section 14 (D) of the Act and before the order dated 16th
August, 2005 in RC Revision No.32/205 (supra)) of the Civil Judge, Delhi.
during the pendency of the earlier petition for eviction under Section 14(D) of
the Act also instituted a suit for declaration of her title to the tenancy
premises; her two brothers Mohd. Haider Baksh & Mohd. Sultan and the tenant
Sardar Nihal Singh were impleaded as defendants to the suit. The said suit was
dismissed vide judgment and decree dated 15 th December, 2004 (i.e. shortly
after the order of the Additional Rent Controller in the earlier petition for
eviction under Section 14 (D) of the Act and before the order dated 16th
August, 2005 in RC Revision No.32/205 (supra)) of the Civil Judge, Delhi.
The
Civil Judge held that Sardar Nihal Singh had not attorned to the petitioner as
landlady w.e.f. 1st January, 1994; that there was no oral gift of the tenancy
premises by the brothers in favour of the petitioner on 1st January, 1994 since
it was not accompanied by delivery of possession inasmuch as the brothers
continued to realize the rent from Sardar Nihal singh till 1st February, 1997;
that the issuance of rent receipts by the petitioner through her son / attorney
thereafter was also without knowledge of Sardar Nihal Singh; that mutation in
the MCD was only for the purpose of collection of tax. It was thus held that
the petitioner had not become the owner / landlord of the property and the suit
was held to have been instituted by the petitioner in collusion with her
brothers.
Civil Judge held that Sardar Nihal Singh had not attorned to the petitioner as
landlady w.e.f. 1st January, 1994; that there was no oral gift of the tenancy
premises by the brothers in favour of the petitioner on 1st January, 1994 since
it was not accompanied by delivery of possession inasmuch as the brothers
continued to realize the rent from Sardar Nihal singh till 1st February, 1997;
that the issuance of rent receipts by the petitioner through her son / attorney
thereafter was also without knowledge of Sardar Nihal Singh; that mutation in
the MCD was only for the purpose of collection of tax. It was thus held that
the petitioner had not become the owner / landlord of the property and the suit
was held to have been instituted by the petitioner in collusion with her
brothers.
7. The petitioner
preferred an appeal against the aforesaid judgment and decree. However, during
the pendency of the said appeal, the brothers of the petitioner executed and
got registered on 17th January, 2005 a deed of release / relinquishment. In the
said deed, it was mentioned that upon the demise of Karam Ilahi his widow
Muglani Begum, the aforesaid Mohd. Haider Baksh & Mohd. Sultan and the
petitioner inherited inter alia the tenancy premises; that the petitioner was
widowed on 22nd October, 1994; that the brothers did not want to continue to be
the co-owners / co-sharers along with the petitioner and out of love and
affection on 1st January, 1994 made oral gift of the tenancy premises in favour
of the petitioner and subsequently on 10th February, 1997 also registered a
deed of declaration confirming the said gift; however since the suit for
declaration filed by the petitioner had been dismissed and as a result of
findings wherein the status of the property is deemed to have remained the same
i.e. Mohd. Haider Baksh & Mohd. Sultan are deemed to have continued to
remain the co- owners and co-landlords of the tenancy premises, they were out
of natural love and affection for the petitioner relinquishing their rights in
the tenancy premises in favour of the petitioner.
preferred an appeal against the aforesaid judgment and decree. However, during
the pendency of the said appeal, the brothers of the petitioner executed and
got registered on 17th January, 2005 a deed of release / relinquishment. In the
said deed, it was mentioned that upon the demise of Karam Ilahi his widow
Muglani Begum, the aforesaid Mohd. Haider Baksh & Mohd. Sultan and the
petitioner inherited inter alia the tenancy premises; that the petitioner was
widowed on 22nd October, 1994; that the brothers did not want to continue to be
the co-owners / co-sharers along with the petitioner and out of love and
affection on 1st January, 1994 made oral gift of the tenancy premises in favour
of the petitioner and subsequently on 10th February, 1997 also registered a
deed of declaration confirming the said gift; however since the suit for
declaration filed by the petitioner had been dismissed and as a result of
findings wherein the status of the property is deemed to have remained the same
i.e. Mohd. Haider Baksh & Mohd. Sultan are deemed to have continued to
remain the co- owners and co-landlords of the tenancy premises, they were out
of natural love and affection for the petitioner relinquishing their rights in
the tenancy premises in favour of the petitioner.
8. The petitioner on
18th December, 2006 made a statement in the appeal preferred against the
judgment and decree in the suit, withdrawing the appeal for the reason of
execution and registration of the registered relinquishment deeds dated 17th
January, 2005 and also for the reason of the findings of the petitioner being
the landlady in the order of the Additional Rent Controller in the earlier
petition for eviction under Section 14(D) of the Act and which finding had not been
disturbed in the order dated 16th August, 2005 in RC Revision No.32/2005.
18th December, 2006 made a statement in the appeal preferred against the
judgment and decree in the suit, withdrawing the appeal for the reason of
execution and registration of the registered relinquishment deeds dated 17th
January, 2005 and also for the reason of the findings of the petitioner being
the landlady in the order of the Additional Rent Controller in the earlier
petition for eviction under Section 14(D) of the Act and which finding had not been
disturbed in the order dated 16th August, 2005 in RC Revision No.32/2005.
9. In the meanwhile,
Sardar Nihal Singh died. The petitioner thereafter instituted the petition for
eviction under Section 14 (1)(e) of the Act and from which the present Revision
petition arises against the widow and son of Sardar Nihal Singh. In the said
petition for eviction, the petitioner gave the narration of the orders in the
earlier petition for eviction under Section 14(D) of the Act and the Revision
preferred there from and the judgment / decree in the suit and the registered
relinquishment deeds dated 17th January, 2005 and on the basis thereof claimed
to be the landlord and owner of the property.
Sardar Nihal Singh died. The petitioner thereafter instituted the petition for
eviction under Section 14 (1)(e) of the Act and from which the present Revision
petition arises against the widow and son of Sardar Nihal Singh. In the said
petition for eviction, the petitioner gave the narration of the orders in the
earlier petition for eviction under Section 14(D) of the Act and the Revision
preferred there from and the judgment / decree in the suit and the registered
relinquishment deeds dated 17th January, 2005 and on the basis thereof claimed
to be the landlord and owner of the property.
10. The
respondents/tenants applied for leave to contest. It is inter alia their plea
that the petitioner could not take advantage of the relinquishment deeds dated
17th January, 2005 executed on the premises of the petitioner being a co-owner
of the tenancy premises on the demise of her father Sh. Karam Ilahi for three
reasons. Firstly, the petitioner having in the previous proceedings contended
that Sh. Karan Ilahi in his lifetime gifted the property to Mohd. Haider Baksh
& Mohd. Sultan and who were alleged to have gifted the property on 1st
January, 1994 to the petitioner; it was pleaded that thus there could be no
question of the petitioner being a co-owner.
respondents/tenants applied for leave to contest. It is inter alia their plea
that the petitioner could not take advantage of the relinquishment deeds dated
17th January, 2005 executed on the premises of the petitioner being a co-owner
of the tenancy premises on the demise of her father Sh. Karam Ilahi for three
reasons. Firstly, the petitioner having in the previous proceedings contended
that Sh. Karan Ilahi in his lifetime gifted the property to Mohd. Haider Baksh
& Mohd. Sultan and who were alleged to have gifted the property on 1st
January, 1994 to the petitioner; it was pleaded that thus there could be no
question of the petitioner being a co-owner.
Secondly, it was contended that if
at all Sh. Karam Ilahi had not gifted the property to his two sons then Sh.
Karam Ilahi had besides the petitioner and Mohd. Haider Baksh & Mohd.
Sultan left other children also and all of whom would become the co-owners and
the petitioner on the basis of the relinquishment deeds executed by only two of
her brothers could not acquire title to the property. Thirdly, it was contended
that if at all the petitioner was claiming her title to the property on the
basis of the relinquishment deeds of 17th January, 2005, the bar under Section
14 (6) of the Act would come in the way and the petitioner having acquired the
title to the property for the first time vide relinquishment deeds dated 17th
January, 2005 could not institute the petition for eviction for five years i.e.
till 16th January, 2010. It was also contended that the petitioner had been
taking contradictory stands.
at all Sh. Karam Ilahi had not gifted the property to his two sons then Sh.
Karam Ilahi had besides the petitioner and Mohd. Haider Baksh & Mohd.
Sultan left other children also and all of whom would become the co-owners and
the petitioner on the basis of the relinquishment deeds executed by only two of
her brothers could not acquire title to the property. Thirdly, it was contended
that if at all the petitioner was claiming her title to the property on the
basis of the relinquishment deeds of 17th January, 2005, the bar under Section
14 (6) of the Act would come in the way and the petitioner having acquired the
title to the property for the first time vide relinquishment deeds dated 17th
January, 2005 could not institute the petition for eviction for five years i.e.
till 16th January, 2010. It was also contended that the petitioner had been
taking contradictory stands.
11. It is in the aforesaid
state of affairs that the Additional Rent Controller has held the pleas of the
respondents/tenants challenging the ownership of the petitioner, to be raising
a triable issue and granted leave to defend to the respondents / tenants.
state of affairs that the Additional Rent Controller has held the pleas of the
respondents/tenants challenging the ownership of the petitioner, to be raising
a triable issue and granted leave to defend to the respondents / tenants.
12. At the outset, I
may state that in view of the aforesaid state of pleadings and documents, the
challenge by the respondents/tenants to the claim of the petitioner of being
the owner is not such which requires a trial. It only needs adjudication. An
issue of fact requires trial when it cannot be adjudicated without examination
and cross examination of witnesses. However, in the present case, we have the
pleadings and the orders / judgments in the two earlier legal proceedings
between the parties, one under Section 14(D) of the Act and the other being the
suit for declaration, besides the registered deeds of declaration of 1997 and
the registered relinquishments deeds of 2005.
may state that in view of the aforesaid state of pleadings and documents, the
challenge by the respondents/tenants to the claim of the petitioner of being
the owner is not such which requires a trial. It only needs adjudication. An
issue of fact requires trial when it cannot be adjudicated without examination
and cross examination of witnesses. However, in the present case, we have the
pleadings and the orders / judgments in the two earlier legal proceedings
between the parties, one under Section 14(D) of the Act and the other being the
suit for declaration, besides the registered deeds of declaration of 1997 and
the registered relinquishments deeds of 2005.
The brothers of the petitioner
appearing as witness in the earlier legal proceedings had admitted the
execution of the deed of declaration of 1997. As far as the registered
relinquishment deeds of 2005 are concerned, there is no challenge as to the
execution thereof. The only challenge is as to the effect, impact and validity
thereof. Thus qua ownership there is no fact for which the petitioner or the
respondents are required to enter into witness box themselves or to produce any
other witness.
appearing as witness in the earlier legal proceedings had admitted the
execution of the deed of declaration of 1997. As far as the registered
relinquishment deeds of 2005 are concerned, there is no challenge as to the
execution thereof. The only challenge is as to the effect, impact and validity
thereof. Thus qua ownership there is no fact for which the petitioner or the
respondents are required to enter into witness box themselves or to produce any
other witness.
13. The purport of the
summary procedure prescribed under Section 25B of the Rent Act was to avoid
trial necessarily in cases for eviction on the ground of personal requirement
of the premises. The onus has been placed on the tenant to show to the
Controller such facts which if proved in trial would disentitle the landlord to
an order of eviction on the said grounds. In a given case, the tenant may in
the application for leave to defend raise pleas disputing the claim of the
petitioner. The said pleas may not necessarily require trial. Merely because
pleas have been raised and which if successful may disentitle the landlord from
an order of eviction would be no ground to grant leave to contest if the pleas
are such which do not require any trial. The Controller is then required to
proceed to decide the said pleas at the stage of considering the application for
leave to contest itself.
summary procedure prescribed under Section 25B of the Rent Act was to avoid
trial necessarily in cases for eviction on the ground of personal requirement
of the premises. The onus has been placed on the tenant to show to the
Controller such facts which if proved in trial would disentitle the landlord to
an order of eviction on the said grounds. In a given case, the tenant may in
the application for leave to defend raise pleas disputing the claim of the
petitioner. The said pleas may not necessarily require trial. Merely because
pleas have been raised and which if successful may disentitle the landlord from
an order of eviction would be no ground to grant leave to contest if the pleas
are such which do not require any trial. The Controller is then required to
proceed to decide the said pleas at the stage of considering the application for
leave to contest itself.
If the Controller grants leave to contest merely
because pleas have been raised even though not requiring trial, the same would
negate the purpose of a summary procedure. Section 25 B (5) requires the
Controller to give to the tenant leave to contest, if the affidavit of tenant
declares such “facts” as would disentitle the landlord from obtaining
an order of eviction under Section 14(1)(e). The intent is that
“facts” would require to be proved. However, if what is disclosed is
a legal defence or a legal plea, not required to be proved, the same has to be
adjudicated immediately & decision of such legal plea not to be deferred by
granting leave to contest to the tenant.
because pleas have been raised even though not requiring trial, the same would
negate the purpose of a summary procedure. Section 25 B (5) requires the
Controller to give to the tenant leave to contest, if the affidavit of tenant
declares such “facts” as would disentitle the landlord from obtaining
an order of eviction under Section 14(1)(e). The intent is that
“facts” would require to be proved. However, if what is disclosed is
a legal defence or a legal plea, not required to be proved, the same has to be
adjudicated immediately & decision of such legal plea not to be deferred by
granting leave to contest to the tenant.
14. The order of the
Additional Rent Controller in the present case is found to be suffering from
the said malady only. The Controller has in the impugned order held that the
petitioner is trying to come out of the judgment and decree of the civil court
by relying upon the relinquishment deeds of 17th January, 2005 and is shifting
her stand and if her two brothers are trying to make her the owner by way of
relinquishment by shifting their stand, then the petitioner cannot invoke
Section 14(1)(e) of the Act at least for a period of five years from the date
of becoming the owner; it has further been observed that the relinquishment
deeds can be made only in favour of the person who has right, title or share in
the property. Having said so, the Controller has observed that a triable issue
has been raised. However, the Controller has failed to discuss as to trial on
what aspect is required. It was for the Controller to decide the claim of the
petitioner of ownership on the basis of the admitted facts before him.
Additional Rent Controller in the present case is found to be suffering from
the said malady only. The Controller has in the impugned order held that the
petitioner is trying to come out of the judgment and decree of the civil court
by relying upon the relinquishment deeds of 17th January, 2005 and is shifting
her stand and if her two brothers are trying to make her the owner by way of
relinquishment by shifting their stand, then the petitioner cannot invoke
Section 14(1)(e) of the Act at least for a period of five years from the date
of becoming the owner; it has further been observed that the relinquishment
deeds can be made only in favour of the person who has right, title or share in
the property. Having said so, the Controller has observed that a triable issue
has been raised. However, the Controller has failed to discuss as to trial on
what aspect is required. It was for the Controller to decide the claim of the
petitioner of ownership on the basis of the admitted facts before him.
15. A purely legal plea
capable of adjudication without examination and cross examination of witnesses
ought to be adjudicated at the stage of leave to contest only without directing
the parties for a trial which is in fact not required.
capable of adjudication without examination and cross examination of witnesses
ought to be adjudicated at the stage of leave to contest only without directing
the parties for a trial which is in fact not required.
16. In the present
case, in view of the parties have thrashed out the aspect of ownership in two
previous proceedings and in the face of there being no challenge to the
execution of the registered documents and the challenge being to their effect
and validity only, the Controller did not act in accordance with law in
granting leave to contest. The Controller did not notice that grant of leave to
contest in such cases not only vexes the parties but also consumes the precious
time of the courts. The adjudication as to whether the petitioner can in the
aforesaid state of facts and circumstances be said to be the owner within the
meaning of Section 14(1)(e) of the Act or not is possible without any trial.
case, in view of the parties have thrashed out the aspect of ownership in two
previous proceedings and in the face of there being no challenge to the
execution of the registered documents and the challenge being to their effect
and validity only, the Controller did not act in accordance with law in
granting leave to contest. The Controller did not notice that grant of leave to
contest in such cases not only vexes the parties but also consumes the precious
time of the courts. The adjudication as to whether the petitioner can in the
aforesaid state of facts and circumstances be said to be the owner within the
meaning of Section 14(1)(e) of the Act or not is possible without any trial.
Neither of the counsels were at the time of hearing able to tell as to what
evidence besides the aforesaid facts would they lead on the aspect of
ownership. An adjudication has to be made on the basis of the existing admitted
material. If on the basis thereof it has to be held that the petitioner is not
the owner, no purpose would be served by dragging trial. Similarly, if on the
basis of the said material, the petitioner is found to be the owner, in the
absence of any other ground for leave to defend, again no purpose would be
served in putting the parties to trial. The Rent Controller has merely pushed
the decision on the basis of available facts to a subsequent date perhaps three
to five years, negating the very purpose of introducing the summary procedure.
evidence besides the aforesaid facts would they lead on the aspect of
ownership. An adjudication has to be made on the basis of the existing admitted
material. If on the basis thereof it has to be held that the petitioner is not
the owner, no purpose would be served by dragging trial. Similarly, if on the
basis of the said material, the petitioner is found to be the owner, in the
absence of any other ground for leave to defend, again no purpose would be
served in putting the parties to trial. The Rent Controller has merely pushed
the decision on the basis of available facts to a subsequent date perhaps three
to five years, negating the very purpose of introducing the summary procedure.
17. I am satisfied that
the question of ownership can be adjudicated on the basis of existing material
and does not require any evidence. As aforesaid, the counsels have also relied
upon the said material only and no other plea requiring evidence in support of
their respective pleas has been cited.
the question of ownership can be adjudicated on the basis of existing material
and does not require any evidence. As aforesaid, the counsels have also relied
upon the said material only and no other plea requiring evidence in support of
their respective pleas has been cited.
18. The undisputed
facts are:-
facts are:-
(i) The premises were
let out to the predecessor of the respondent by Karam Ilahi who continued to
receive rent and issued receipts in his lifetime.
let out to the predecessor of the respondent by Karam Ilahi who continued to
receive rent and issued receipts in his lifetime.
(ii) After the demise
of Karam Ilahi the rent was paid to his widow Muglani Begum and after her
demise to Mohd. Haider Baksh and Mohd. Sultan being only two of the several
other natural heirs of Karam Ilahi.
of Karam Ilahi the rent was paid to his widow Muglani Begum and after her
demise to Mohd. Haider Baksh and Mohd. Sultan being only two of the several
other natural heirs of Karam Ilahi.
(iii) No other natural
heir of Karam Ilahi has in the last over 40 years since his demise come forward
to claim rent from the respondents or their predecessor or to claim adversely
to the petitioner or to the said Mohd. Haider Baksh & Mohd. Sultan.
heir of Karam Ilahi has in the last over 40 years since his demise come forward
to claim rent from the respondents or their predecessor or to claim adversely
to the petitioner or to the said Mohd. Haider Baksh & Mohd. Sultan.
(iv) Mohd. Haider Baksh
& Mohd. Sultan continued to receive the rent from the respondents/their
predecessor till 1st February, 1997.
& Mohd. Sultan continued to receive the rent from the respondents/their
predecessor till 1st February, 1997.
(v) Though the rent
thereafter was received by the petitioner against receipt but it has been held
in the judgment of the civil court that the same was without knowledge of
predecessor of the respondents. The said finding of the civil court has
attained finality and would be binding in a rent control proceedings. Thus the
petitioner cannot take any benefit of the findings in the earlier petition for
eviction under Section 14D of the Act.
thereafter was received by the petitioner against receipt but it has been held
in the judgment of the civil court that the same was without knowledge of
predecessor of the respondents. The said finding of the civil court has
attained finality and would be binding in a rent control proceedings. Thus the
petitioner cannot take any benefit of the findings in the earlier petition for
eviction under Section 14D of the Act.
(vi) The case of the
said Mohd. Haider Baksh & Mohd. Sultan having gifted the property to the
petitioner on 1st January, 1994 has also been disbelieved in the
judgment/decree of the civil court and which has also attained finality and
would be binding in these proceedings.
said Mohd. Haider Baksh & Mohd. Sultan having gifted the property to the
petitioner on 1st January, 1994 has also been disbelieved in the
judgment/decree of the civil court and which has also attained finality and
would be binding in these proceedings.
(vii) That the property
stands mutated with the consent of Mohd. Haider Baksh & Mohd. Sultan in the
exclusive name of the petitioner in the records of the MCD since the year 1997
i.e. for over 12 years prior hereto.
stands mutated with the consent of Mohd. Haider Baksh & Mohd. Sultan in the
exclusive name of the petitioner in the records of the MCD since the year 1997
i.e. for over 12 years prior hereto.
(viii) Mohd. Haider
Baksh & Mohd. Sultan have vide registered deeds of declaration of 1997 and
of relinquishment deeds of 2005 disclaimed any right, title, interest or share
in the property and affirmed the exclusive title of the petitioner to the
property.
Baksh & Mohd. Sultan have vide registered deeds of declaration of 1997 and
of relinquishment deeds of 2005 disclaimed any right, title, interest or share
in the property and affirmed the exclusive title of the petitioner to the
property.
(ix) The respondents /
their predecessors, as transpires from the judgments in the earlier petition
under Section 14(D) and in the suit for declaration not disputed Mohd. Haider
Baksh & Mohd. Sultan to have become the exclusive owners of the property
after the demise of Sh. Karam Ilahi and his wife and had only disputed the gift
by them in favour of the petitioner.
their predecessors, as transpires from the judgments in the earlier petition
under Section 14(D) and in the suit for declaration not disputed Mohd. Haider
Baksh & Mohd. Sultan to have become the exclusive owners of the property
after the demise of Sh. Karam Ilahi and his wife and had only disputed the gift
by them in favour of the petitioner.
19. It is the effect of
the aforesaid admitted facts which has to be digested and a finding has to be
returned whether on the basis thereof the petitioner can be said to be the
owner of the tenancy premises within the meaning of Section 14(1)(e) of the Act
or not.
the aforesaid admitted facts which has to be digested and a finding has to be
returned whether on the basis thereof the petitioner can be said to be the
owner of the tenancy premises within the meaning of Section 14(1)(e) of the Act
or not.
20. It has been held by
the Supreme Court in Shanti Sharma Vs. Ved Prabha AIR 1987 SC 2028 that for the
purpose of Section 14(1)(e) of the Act, ownership is not to be understood as
absolute ownership but only as a title better than the tenant. So what has to
be seen is whether on the basis of aforesaid facts it can be said that the
petitioner has any title to the property, a title better than the respondents.
the Supreme Court in Shanti Sharma Vs. Ved Prabha AIR 1987 SC 2028 that for the
purpose of Section 14(1)(e) of the Act, ownership is not to be understood as
absolute ownership but only as a title better than the tenant. So what has to
be seen is whether on the basis of aforesaid facts it can be said that the
petitioner has any title to the property, a title better than the respondents.
21. This court in Milk
Food Ltd. Vs. Kiran Khanna 51 (1993) DLT 141 in relation to Section 14(1)(e)
has held that a title to the property can also be acquired by adverse
possession. In that case, also the tenant was averring the father of the
petitioner to be the owner. The father had however by way of various acts but
not by way of any registered conveyance deed declared the petitioner/daughter
to be owner. The father had also appeared as a witness in the petition for
eviction confirming the title as of his daughter and disclaiming any right in
the property. This had been going on for over 12 years including during the
pendency of the eviction case.
Food Ltd. Vs. Kiran Khanna 51 (1993) DLT 141 in relation to Section 14(1)(e)
has held that a title to the property can also be acquired by adverse
possession. In that case, also the tenant was averring the father of the
petitioner to be the owner. The father had however by way of various acts but
not by way of any registered conveyance deed declared the petitioner/daughter
to be owner. The father had also appeared as a witness in the petition for
eviction confirming the title as of his daughter and disclaiming any right in
the property. This had been going on for over 12 years including during the
pendency of the eviction case.
The Additional Rent Controller held the
petitioner to have become the owner of the premises by way of adverse
possession merely for the reason of the person, whom the tenant was averring to
be the owner having declared and affirmed the title of the petitioner. The said
judgment applies to the facts of the present case on all fours. Here also it
will be seen that Mohd. Haider Baksh & Mohd. Sultan who are averred by the
respondents/their predecessors to be the owner have affirmed the title to the
petitioner since 1st January, 1994. More than 12 years have passed since then.
In confirmation of the said title Mohd. Haider Baksh & Mohd. Sultan got the
property mutated with the MCD in the exclusive name of the petitioner w.e.f.
1997, allowed the petitioner only to realize the rent and issue rent receipts,
in 1997 and 2005 executed registered documents disclaiming any rights in the
property and affirming the said rights to be with the petitioner.
petitioner to have become the owner of the premises by way of adverse
possession merely for the reason of the person, whom the tenant was averring to
be the owner having declared and affirmed the title of the petitioner. The said
judgment applies to the facts of the present case on all fours. Here also it
will be seen that Mohd. Haider Baksh & Mohd. Sultan who are averred by the
respondents/their predecessors to be the owner have affirmed the title to the
petitioner since 1st January, 1994. More than 12 years have passed since then.
In confirmation of the said title Mohd. Haider Baksh & Mohd. Sultan got the
property mutated with the MCD in the exclusive name of the petitioner w.e.f.
1997, allowed the petitioner only to realize the rent and issue rent receipts,
in 1997 and 2005 executed registered documents disclaiming any rights in the
property and affirming the said rights to be with the petitioner.
The
petitioner even otherwise has been openly and continuously declaring herself to
be the owner of the property for the last more than 12 years. In these facts
the petitioner if by nothing else, has become the owner by adverse possession.
petitioner even otherwise has been openly and continuously declaring herself to
be the owner of the property for the last more than 12 years. In these facts
the petitioner if by nothing else, has become the owner by adverse possession.
22. The counsel for the
respondents/tenants is right in contending:-
respondents/tenants is right in contending:-
(i) That the findings
in the earlier petition for eviction under Section 14(D) of the Act of the
petitioner being the landlady are not binding. The said findings were returned
in a petition for eviction which was ultimately dismissed for the reason being
not maintainable. It is the settled legal position that when the final order in
a legal proceeding is on the ground of non maintainability of the proceedings
or for the reason of any other technical defect therein, the findings even if
returned on merits therein do not become res judicata in subsequent
proceedings. Even otherwise, the final order in the earlier petition for
eviction under Section 14(D) of the Act being in favour of the
respondents/their predecessors they had no opportunity to challenge the
findings against them and for which reason also the same cannot be res
judicata. However, I have as aforesaid held the petitioner to be the owner by
way of adverse possession and not for the reason of the findings in the earlier
petition for eviction under Section 14 (D) of the Act.
in the earlier petition for eviction under Section 14(D) of the Act of the
petitioner being the landlady are not binding. The said findings were returned
in a petition for eviction which was ultimately dismissed for the reason being
not maintainable. It is the settled legal position that when the final order in
a legal proceeding is on the ground of non maintainability of the proceedings
or for the reason of any other technical defect therein, the findings even if
returned on merits therein do not become res judicata in subsequent
proceedings. Even otherwise, the final order in the earlier petition for
eviction under Section 14(D) of the Act being in favour of the
respondents/their predecessors they had no opportunity to challenge the
findings against them and for which reason also the same cannot be res
judicata. However, I have as aforesaid held the petitioner to be the owner by
way of adverse possession and not for the reason of the findings in the earlier
petition for eviction under Section 14 (D) of the Act.
(ii) That the
petitioner has in the present petition for eviction taken a stand in consistent
to the stand taken in the earlier proceedings. The earlier proceedings were
instituted by the petitioner by pleading a gift by Sh. Karam Ilahi in his
lifetime in favour of Mohd. Haider Baksh & Mohd. Sultan and the said
persons having become exclusive owners of the property and having orally gifted
the property on 1st January, 1994 to the petitioner. The petitioner having
taken the said stand cannot now be permitted to turn around and ignore the
earlier pleading of gift by Sh. Karam Ilahi in favour of Mohd. Haider Baksh
& Mohd. Sultan and proceeding on the premise that Sh. Karam Ilahi had died
intestate.
petitioner has in the present petition for eviction taken a stand in consistent
to the stand taken in the earlier proceedings. The earlier proceedings were
instituted by the petitioner by pleading a gift by Sh. Karam Ilahi in his
lifetime in favour of Mohd. Haider Baksh & Mohd. Sultan and the said
persons having become exclusive owners of the property and having orally gifted
the property on 1st January, 1994 to the petitioner. The petitioner having
taken the said stand cannot now be permitted to turn around and ignore the
earlier pleading of gift by Sh. Karam Ilahi in favour of Mohd. Haider Baksh
& Mohd. Sultan and proceeding on the premise that Sh. Karam Ilahi had died
intestate.
(iii) Even if the
petitioner is permitted to so turn around, there is no explanation as to what
happened to the share of other heirs of Sh. Karam Ilahi, if he had died
intestate. However, I may add that the same would not come in the way of the
petitioner inasmuch as the petitioner would in that case also be a co-owner and
be entitled to maintain a petition for eviction.
petitioner is permitted to so turn around, there is no explanation as to what
happened to the share of other heirs of Sh. Karam Ilahi, if he had died
intestate. However, I may add that the same would not come in the way of the
petitioner inasmuch as the petitioner would in that case also be a co-owner and
be entitled to maintain a petition for eviction.
However, as aforesaid,
the said pleas do not come in the way of the reasoning by which this court has
held the petitioner to have become the owner of the property.
the said pleas do not come in the way of the reasoning by which this court has
held the petitioner to have become the owner of the property.
23. I have also
considered whether the petition for eviction can be said to be lacking in bona
fides essential in a case under Section 14(1)(e) of the Act, for the reason of
the petitioner taking shifting stand. However, I am unable to hold so. On the
contrary, what the facts show is that the petitioner and her brothers since
1997 have been doing all that they may have been advised from time to time, to
transfer the title in the property exclusively to the petitioner and to perfect
the title of the petitioner thereto. The reason is not difficult to fathom. The
petitioner was widowed in 1994. From the facts it is borne out that the
petitioner along with her children is residing in a house in the same locality
where the tenancy premises are situated. In that house besides the petitioner
and her children, the other family members of the deceased husband of the
petitioner are also residing.
considered whether the petition for eviction can be said to be lacking in bona
fides essential in a case under Section 14(1)(e) of the Act, for the reason of
the petitioner taking shifting stand. However, I am unable to hold so. On the
contrary, what the facts show is that the petitioner and her brothers since
1997 have been doing all that they may have been advised from time to time, to
transfer the title in the property exclusively to the petitioner and to perfect
the title of the petitioner thereto. The reason is not difficult to fathom. The
petitioner was widowed in 1994. From the facts it is borne out that the
petitioner along with her children is residing in a house in the same locality
where the tenancy premises are situated. In that house besides the petitioner
and her children, the other family members of the deceased husband of the
petitioner are also residing.
The petitioner is having lesser accommodation
than her requirement in the said house. It appears to have been decided between
the brothers and the petitioner and the petitioner that the tenancy premises
would be transferred to the petitioner to enable the petitioner to evict the
tenant and to occupy the same. The petitioner was advised the route of oral
gift permissible under the Mohammedan Law and confirmation thereof by the
registered deed of declaration of 1997. Upon the same not finding favour in the
judgment in the civil court, the petitioner appears to have been advised the
route of registered relinquishment deeds. All that can be deciphered from the
said conduct is an attempt to avoid payment of stamp duty if the property had
been transferred in the normal course. However, an attempt to avoid the payment
of the stamp duty would not impinge on the requirement of the petitioner of the
tenancy premises and would not make the said requirement mala fide. The aspect
of bona fide is to be considered vis-à-vis requirement only and not qua the
mode in which the petitioner acquires title to the property.
than her requirement in the said house. It appears to have been decided between
the brothers and the petitioner and the petitioner that the tenancy premises
would be transferred to the petitioner to enable the petitioner to evict the
tenant and to occupy the same. The petitioner was advised the route of oral
gift permissible under the Mohammedan Law and confirmation thereof by the
registered deed of declaration of 1997. Upon the same not finding favour in the
judgment in the civil court, the petitioner appears to have been advised the
route of registered relinquishment deeds. All that can be deciphered from the
said conduct is an attempt to avoid payment of stamp duty if the property had
been transferred in the normal course. However, an attempt to avoid the payment
of the stamp duty would not impinge on the requirement of the petitioner of the
tenancy premises and would not make the said requirement mala fide. The aspect
of bona fide is to be considered vis-à-vis requirement only and not qua the
mode in which the petitioner acquires title to the property.
24. From the several
acts aforesaid to vest the title of the property in the petitioner and to
declare the petitioner as the owner of the property, it cannot be said that the
same are as a result of collusion between the petitioner and her brothers or only
for the purpose of seeking the eviction of the tenant. The brothers of the
petitioner have by executing the documents aforementioned lost complete title
to the property and will now not be able to turn around and claim back the
title from the petitioner. Moreover, the proceedings are being now pursued by
the petitioner through her son and not through her brothers. On this account
also, no mala fides are found.
acts aforesaid to vest the title of the property in the petitioner and to
declare the petitioner as the owner of the property, it cannot be said that the
same are as a result of collusion between the petitioner and her brothers or only
for the purpose of seeking the eviction of the tenant. The brothers of the
petitioner have by executing the documents aforementioned lost complete title
to the property and will now not be able to turn around and claim back the
title from the petitioner. Moreover, the proceedings are being now pursued by
the petitioner through her son and not through her brothers. On this account
also, no mala fides are found.
25. Since I have not
accepted the title of the petitioner on the basis of relinquishment deeds of
2005, the question of bar of Section 14(6) also does not come in. However, I
may mention that the said term of five years is also now nearly over.
accepted the title of the petitioner on the basis of relinquishment deeds of
2005, the question of bar of Section 14(6) also does not come in. However, I
may mention that the said term of five years is also now nearly over.
26. Though the
application for leave to defend appears to have been contested before the
Additional Rent Controller merely on the aspect of ownership but the counsel
for the respondents before this Court also urged that there are other heirs
also of Sardar Nihal Singh against whom no petition for eviction has been
filed. However, the other heirs are the married daughters of Sardar Nihal singh
who are residing in their matrimonial home and not permanently residing in the
tenancy premises. It is not the case that the respondents are not capable of
representing the interest even if any of the other heirs. It is settled law
that one heir of the tenant is capable of representing the entire estate unless
shown to be in collusion with the landlord. See Surayya Begum Vs. Mohd. Usman
(1991) 3 SCC 114. That is not the position here. The respondents have contested
the case before the Additional Rent Controller and before this Court tooth and
nail. Thus, the said ground cannot constitute a ground for grant of leave to
defend.
application for leave to defend appears to have been contested before the
Additional Rent Controller merely on the aspect of ownership but the counsel
for the respondents before this Court also urged that there are other heirs
also of Sardar Nihal Singh against whom no petition for eviction has been
filed. However, the other heirs are the married daughters of Sardar Nihal singh
who are residing in their matrimonial home and not permanently residing in the
tenancy premises. It is not the case that the respondents are not capable of
representing the interest even if any of the other heirs. It is settled law
that one heir of the tenant is capable of representing the entire estate unless
shown to be in collusion with the landlord. See Surayya Begum Vs. Mohd. Usman
(1991) 3 SCC 114. That is not the position here. The respondents have contested
the case before the Additional Rent Controller and before this Court tooth and
nail. Thus, the said ground cannot constitute a ground for grant of leave to
defend.
27. The counsel for the
petitioner has also contended that in the Revision petition earlier preferred
against the dismissal of the earlier petition for eviction under Section 14 (D)
of the Act, the finding of the Additional Rent Controller of the petitioner having
not established her requirement for the tenancy premises had been set aside.
However, the petitioner cannot take any advantage thereof. The said finding was
set aside on the statement of the counsel for the respondent that it was not
res judicata for the reason aforementioned. Thus merely on that ground the
petitioner cannot claim res judicata qua requirement.
petitioner has also contended that in the Revision petition earlier preferred
against the dismissal of the earlier petition for eviction under Section 14 (D)
of the Act, the finding of the Additional Rent Controller of the petitioner having
not established her requirement for the tenancy premises had been set aside.
However, the petitioner cannot take any advantage thereof. The said finding was
set aside on the statement of the counsel for the respondent that it was not
res judicata for the reason aforementioned. Thus merely on that ground the
petitioner cannot claim res judicata qua requirement.
28. The case of the
petitioner is that her family comprises of herself, her un married daughter
aged 45 years residing with her, her two other sons, the widow and children of
her pre deceased son also residing with her, their wives and children besides
four married daughters. They are all residing in House No.7518 Qureshi Nagar,
Sadar Bazar, Delhi, wherein other members of the family of the deceased husband
of the petitioner are also residing. The case of the petitioner is that she has
paucity of accommodation in House No.7518 and while some of the family members
will continue to reside in that house, others would shift into the tenancy
premises if vacated.
petitioner is that her family comprises of herself, her un married daughter
aged 45 years residing with her, her two other sons, the widow and children of
her pre deceased son also residing with her, their wives and children besides
four married daughters. They are all residing in House No.7518 Qureshi Nagar,
Sadar Bazar, Delhi, wherein other members of the family of the deceased husband
of the petitioner are also residing. The case of the petitioner is that she has
paucity of accommodation in House No.7518 and while some of the family members
will continue to reside in that house, others would shift into the tenancy
premises if vacated.
29. A perusal of the
application for leave to defend and the affidavit filed there with shows that
the material pleas in the petition for eviction qua the number of members of
the family of the petitioner and the accommodation available to the petitioner
have not been controverted. There is only a bare statement that the petitioner
does not require the premises and is comfortably residing in her own
accommodation and the petition is actuated for commercial reason. No other
alternative suitable accommodation, if any, available to the petitioner has
also been pleaded. Another plea taken is that the accommodation available to
the petitioner in her existing accommodation is more than the accommodation in
the tenancy premises. It was in fact the said plea which had succeeded in the
order on the earlier petition for eviction under Section 14 (D) of the Act. The
Additional Rent Controller had then held that the petitioner along with all her
family members could not be expected to shift to a smaller accommodation.
application for leave to defend and the affidavit filed there with shows that
the material pleas in the petition for eviction qua the number of members of
the family of the petitioner and the accommodation available to the petitioner
have not been controverted. There is only a bare statement that the petitioner
does not require the premises and is comfortably residing in her own
accommodation and the petition is actuated for commercial reason. No other
alternative suitable accommodation, if any, available to the petitioner has
also been pleaded. Another plea taken is that the accommodation available to
the petitioner in her existing accommodation is more than the accommodation in
the tenancy premises. It was in fact the said plea which had succeeded in the
order on the earlier petition for eviction under Section 14 (D) of the Act. The
Additional Rent Controller had then held that the petitioner along with all her
family members could not be expected to shift to a smaller accommodation.
However, in the present petition for eviction, the petitioner has clarified
that whilst some of her family members would continue to reside in the existing
accommodation, others would occupy the tenancy premises if vacated. Thus the
said plea also does not come in the way of the requirement of the petitioner.
The petitioner also satisfies the requirement of being the landlord as owner is
necessarily the landlord under Section 2(e) of the Act.
that whilst some of her family members would continue to reside in the existing
accommodation, others would occupy the tenancy premises if vacated. Thus the
said plea also does not come in the way of the requirement of the petitioner.
The petitioner also satisfies the requirement of being the landlord as owner is
necessarily the landlord under Section 2(e) of the Act.
30. From the non
traverse by the respondents of the case for requirement made out in the
petition for eviction, I hold that the respondents did not seek leave to defend
on the said ground. In fact the counsel for the respondents during the hearing
before this court fairly admitted that only the title as owner of the
petitioner is challenged and not the ownership.
traverse by the respondents of the case for requirement made out in the
petition for eviction, I hold that the respondents did not seek leave to defend
on the said ground. In fact the counsel for the respondents during the hearing
before this court fairly admitted that only the title as owner of the
petitioner is challenged and not the ownership.
31. I may also add that
though in the application for leave to defend as well as in the affidavit filed
by them there with, it is also pleaded that the purpose of letting was orally
changed from residential alone to residential cum commercial but in view of the
judgment of the Supreme Court in Satyawati Sharma Vs. Union of India AIR 2008
SC 3148, there is no need to return any finding on the said aspect also.
though in the application for leave to defend as well as in the affidavit filed
by them there with, it is also pleaded that the purpose of letting was orally
changed from residential alone to residential cum commercial but in view of the
judgment of the Supreme Court in Satyawati Sharma Vs. Union of India AIR 2008
SC 3148, there is no need to return any finding on the said aspect also.
32. The counsel for the
respondents in support of his contention of a release / relinquishment deed
being possible only amongst co-owners and not to transfer /title in favour of a
person who earlier had none, relied upon Kuppuswami Chettiar Vs. A.S.P.A.
Arumugam Chettiar AIR 1967 SC 1395 and Senthathikalai Pandiya Chinnathambiar
Vs. Varaguna Rama Pandia Chinnathambiar AIR 1954 Madras 5. However, since I
have for holding the petitioner to be the owner, not relied upon the
relinquishment deeds save as perfecting title of petitioner by way of adverse
possesison, need is not felt to discuss the said aspect of the matter.
respondents in support of his contention of a release / relinquishment deed
being possible only amongst co-owners and not to transfer /title in favour of a
person who earlier had none, relied upon Kuppuswami Chettiar Vs. A.S.P.A.
Arumugam Chettiar AIR 1967 SC 1395 and Senthathikalai Pandiya Chinnathambiar
Vs. Varaguna Rama Pandia Chinnathambiar AIR 1954 Madras 5. However, since I
have for holding the petitioner to be the owner, not relied upon the
relinquishment deeds save as perfecting title of petitioner by way of adverse
possesison, need is not felt to discuss the said aspect of the matter.
33. Having found the
petitioner to be the owner of the tenancy premises within the meaning of
Section 14(1)(e) of the Act and there being no other ground as aforesaid on
which leave to contest is sought, this petition succeeds. The order of the
Additional Rent Controller granting leave to contest the petition for eviction
to the respondents is set aside. The application of the respondents for leave
to contest is dismissed and the petitioner having found to have satisfied all
the ingredients of Section 14(1)(e) of the Act, an order of eviction is passed
in favour of the petitioner and against the respondents with respect to the
premises as described in paras 1,2,8 & 20 of the petition for eviction and
shown in the site plan filed with the petition for eviction. However, in
accordance with law, the respondents are granted six months time to vacate the
premises. The order of eviction shall be unexecutable for a period of six
months from today.
petitioner to be the owner of the tenancy premises within the meaning of
Section 14(1)(e) of the Act and there being no other ground as aforesaid on
which leave to contest is sought, this petition succeeds. The order of the
Additional Rent Controller granting leave to contest the petition for eviction
to the respondents is set aside. The application of the respondents for leave
to contest is dismissed and the petitioner having found to have satisfied all
the ingredients of Section 14(1)(e) of the Act, an order of eviction is passed
in favour of the petitioner and against the respondents with respect to the
premises as described in paras 1,2,8 & 20 of the petition for eviction and
shown in the site plan filed with the petition for eviction. However, in
accordance with law, the respondents are granted six months time to vacate the
premises. The order of eviction shall be unexecutable for a period of six
months from today.
34. No order as to
costs.
costs.
RAJIV SAHAI ENDLAW
(JUDGE) January 12, 2010
(JUDGE) January 12, 2010