Full Text
HIGH COURT OF DELHI
RSA No. 135/2014 27th May, 2014 SH. D.N.SINGHAL & ORS. ......Appellants
Through: Mr. S.S.Jain, Advocate.
Through:
To be referred to the Reporter or not? VALMIKI J. MEHTA, J (ORAL)
JUDGMENT
1. This second appeal is filed impugning the concurrent judgments of the courts below; of the trial court dated 11.10.2006 and the first appellate court dated 23.7.2013; by which the suit of the respondents/plaintiffs/landlords for possession and mesne profits has been decreed against the appellants/defendants/tenant who are the legal heirs of the original tenant Sh. Kundan Lal.
2. Sometimes the judgments which are passed by the District Courts are really exhaustive and good judgments. This is one such case 2014:DHC:2850 where the first appellate court in my opinion has given a very thorough, exhaustive and well considered judgment. In a case such as the present therefore this Court would only reproduce the relevant portions of the impugned judgment of the first appellate court which gives the necessary reasoning and conclusions, with a very little discussion by this Court.
3. The issue in the present case is that whether the appellants/defendants do not have protection of the Delhi Rent Control Act, 1958 by having inherited the tenancy rights under Section 2(l) of that Act because the contractual tenancy for residential purpose of the tenant Sh. Kundan Lal had been terminated in the life time of Sh. Kundan Lal. It be noted that under the Delhi Rent Control Act, 1958 whereas on the death of a tenant whose tenancy was for a commercial purpose the tenancy rights are inherited by all the legal heirs who are successors under the Hindu Succession Act, but, in tenancies which are residential tenancies where the contractual tenancy of a tenant is terminated during the life time of the tenant, then, the tenancy is personally inherited only by a limited class of persons and that too sometimes only for a limited period. The relevant provision of Section 2(l) of the Act provides that where the tenancy is for a residential purposes, and the contractual tenancy of the tenant is terminated in the life time of the tenant, the tenancy rights are inherited only by the family members who are financially dependent on the tenant on the date of the death of the tenant and are living with the tenant on the date of death of the tenant. Section 2(l) of the Delhi Rent Control Act, 1958 in its entirety is reproduced below:- “Section 2 (l) "tenant" means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes-
(i) a sub-tenant;
(ii) any person continuing in possession after the termination of his tenancy; and
(iii) in the event of the death of the person continuing in possession after the termination of his tenancy, subject to the order of succession and to this clause, such of the aforesaid person’s- (a) spouse, (b) son or daughter, or, where there are both son and daughter, both of them,
(c) parents,
(d) daughter-in-law, being the widow of his pre-deceased son, as had been ordinarily living in the premises with such person as a member or members of his family up to the date of his death, but does not include,- (A) any person against whom an order or decree for eviction has been made, except where such decree or order for eviction is liable to be re-opened under the proviso of section 3 of the Delhi Rent Control (Amendment) Act, 1976 (18 of 1976); (B) any person to whom a license, as defined by section 52 of the Indian Easements Act, 1882 (5 of 1882), has been granted. Explanation[1]. - The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy shall be as follows:- (a) firstly, his surviving spouse; (b) secondly, his son or daughter, or both, if there is no surviving spouse, or if the surviving spouse did not ordinarily live with the deceased person as a member of his family up to the date of his death;
(c) thirdly, his parents, if there is no surviving spouse, son or daughter or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death; and
(d) fourthly, his daughter-in-law, being the widow of his predeceased son, if there is no surviving spouse, son, daughter or parents of the deceased person, or if such surviving spouse, son, daughter or parents, or any of them, did not ordinarily live in the premises as a member of the family of the deceased person up to the date of his death. Explanation II. - If the person, who acquires, by succession, the right to continue in possession after the termination of the tenancy, was not financially dependent on the deceased person on the date of his death, such successor shall acquire such right for a limited period of one year; and on the expiry of that period, or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished. Explanation III.-For the removal of doubts, it is hereby declared that, - (a) where, by reason of Explanation II, the right of any successor to continue in possession after the termination of the tenancy becomes extinguished, such extinguished shall not affect the right of any other succession of the same category to continue in possession after the termination of the tenancy; but if there is no other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pass on to any other successor, specified in any lower category or categories, as the case may be; (b) the right of every successor, referred to in Explanation I, to continue in possession after the termination of the tenancy, shall be personal to him and shall not, on the death of such successor, develop on any of his heirs.”
4. There are three major issues which were argued in the courts below in the present case on behalf of the appellants and which are: firstly contractual tenancy of Sh. Kundan Lal was not terminated in his life time, secondly, the premises were let out for commercial purposes and not only for residential purposes as was the case of the plaintiffs/landlords, and thirdly, the original plaintiff namely Smt. Kasturi Devi, widow of Sh. Ghasi Ram, was not the owner of the suit property so as to have locus standi to file the subject suit for possession and mesne profits.
5. So far as the aspect of termination of contractual tenancy of late Sh. Kundan Lal is concerned, the same has been dealt with by the first appellate court in paras 23 and 24 of the impugned judgment and the same read as under:- Jurisdiction of the Civil Court:-
8. Learned counsel for the appellant could not dispute that all the facts as stated in the aforesaid paras are correct and no documentary evidence whatsoever was led to prove letting out of premises for commercial purposes or user of the premises for commercial premises. Once that is so, I do not find any illegality or perversity in the conclusions of the courts below that the suit premises were let out only for residential purpose and not for commercial purpose as contended by the appellants.
9. The third and final issue which was urged was as to whether the original plaintiff Smt. Kasturi Devi had locus standi to file the suit for possession. It may be noted that Smt. Kasturi Devi died during the pendency of the suit and was thereafter substituted by her legal heirs who were also the legal heirs of her husband Sh. Ghasi Ram. This issue of locus standi has been dealt with by the first appellate court in paras 19 to 22 of its judgment and the same read as under:- “Locus-standi of the plaintiff to file the suit:-
19. The appellants having initially accepted the original plaintiff Smt. Kasturi Devi to be the co-owner of suit premises to the extent of 1/4th share, attempted to withdraw this admission at subsequent stage by shifting their stand. No document whatsoever has been filed to perceive that Sh. Kishori Lal and his brother Sh. Parmanand had jointly acquired the suit property. There is neither assertion nor proof that the suit property had also devolved on Smt. Kapoori Devi on demise of Sh. Kishori Lal apart from Sh. Ghasi Ram. There is no visible claim in this behalf from said quarters. Be that as it may, Sh. Ghasi Ram having inducted Sh. Kundan Lal as tenant in the suit property, his title cannot be challenged by the appellants in view of the law laid down in 'Baldev Singh Vs. State of Punjab, 1998 (3) PLR 785', 1997 II AD (Delhi)
679. Sh. Ghasi Ram had left behind the respondent no. 1 to 8, five daughters and widow Smt. Kasturi Devi. He had also left behind a Will Ex. PW 1/R[1] in respect of his estate in favour of his wife. Even if the suit property has not been specifically mentioned therein by Municipal Number there is ample description thereof in the registered document to relate it to the suit premises. The admission about suit property having been let out by Sh. Ghasi Ram lends support to his Will and that there is unmistakable reference to the suit property in it as he is not shown to have other property in Najafgarh, Delhi. So far as the objection raised on behalf of the appellants at the time of tendering of Will by PW 1 in rebuttal evidence, is concerned, a tenant has no right to challenge the Will in respect of his tenancy premises in favour of landlord. Only the legal heirs of executant have a right to contest it. Relied – Krishna Chopra Vs Smt. Raksha, 2000 RLR 83. Logical reference in this behalf may also be made to the ratio in Kishen Lal Vs Rajan Chand Khanna, 1992 RLR 347.
20. In this case the legal heirs of deceased original landlord are rather propounding the Will of their father whereby Smt. Kasturi Devi was made Manager of the property and right to deal with tenants, realize rent from them and right of residence etc. were given to her. Admittedly, Sh. Kundan Lal had continuously paid rent of the suit premises to Smt. Kasturi Devi against rent receipts without murmur wherein she was described as the owner of suit property. He and after him the appellants are estopped from challenging the title of Smt. Kasturi Devi to the suit premises and therefore her locus-standi to file the present suit. It was held in Yashoda Bai Vs Lakshmamma 2003 (2) RCR (Rent) 702 (Karnataka) and Pandharinath Vs Rukminibai, 2006 (1) RCR (Rent) 197 (M.P.) that a person who collects rent from tenant comes within the meaning of landlord and is entitled to seek his eviction. Moreover, even one of the co-owners is competent to file suit for recovery of possession against tenant in the property. Reliance for the proposition is placed upon Sri Ram Pasricha Vs Jagannath, AIR 1976 SC 2335.
21. DW 1 had endeavored to cast cloud over the title of original plaintiff and after her the respondent no. 1 to 8 on the strength of property tax bills of the suit premises. Interestingly, neither party took chance to summon the property tax record from the concerned ward for clearing the cloud. The attempt however was futile firstly because the assessee in the record of property tax cannot claim himself to be the owner of the concerned property and secondly the DWs could not show that the respondent no. 1 to 8 are rank outsiders or have nothing to do with the suit premises.
22. Respondent no. 9 projected himself to be the co-owner of the suit property but apart from a few property tax bills Ex.PW1/D[1] to Ex.PW1/D[3] no link could be substantiated. He had never claimed the rent of the suit property from the tenant nor was able to show that it had been realized by his predecessor-in-interest. He does not claim to have notified having a share in the suit property either to the Income Tax Authority or his employer. So far the present proceedings are concerned; he utterly failed to dent the claim of other respondents.” (underlining added)
10. I completely agree with the aforesaid reasoning and conclusions because Section 116 of the Evidence Act, 1872 is a complete bar for the appellants to question the title of Smt. Kasturi Devi wife of Sh. Ghasi Ram since issuing of receipts in favour of Sh. Kundan Lal by Smt. Kasturi Devi is not denied. Section 116 of the Evidence Act, bars a tenant from challenging the title/ownership of the landlord. I may note that the counsel for the appellants tried to argue that the correct interpretation of the Will Ex.PW1/R[1] of Sh. Ghasi Ram dated 23.4.1957 does not give ownership rights to his wife Smt. Kasturi Devi of the suit property, however, the appellants have no locus standi to question interpretation of the Will of Sh. Ghasi Ram inter se the legal heirs of Sh. Ghasi Ram because those legal heirs understand the Will of Sh. Ghasi Ram in a particular manner that the widow Sh.Kasturi Devi is given the right to become the landlord of the suit property. The appellants hence cannot seek to challenge that interpretation because they are third parties to the Will and have no rights to question interpretation of the Will which is agreed inter se the legal heirs of Sh. Ghasi Ram who made the Will.
11. In view of the above, I do not find that any substantial question of law arises under Section 100 CPC for this appeal to be entertained, and the appeal is therefore dismissed, leaving the parties to bear their own costs. MAY 27, 2014 VALMIKI J. MEHTA, J. ib