CM (M) 1279/2008. Case: Tahira Begum Vs Sumitar Kaur and Anr.. High Court of Delhi (India)
| Case Number | CM (M) 1279/2008 |
| Counsel | For Appellant: S.P. Jha, Bipin Kumar Jha and C. Salvaraj, Advs and For Respondents: Satya Prakash Gupta, Adv. |
| Judges | Rajiv Sahai Endlaw, J. |
| Issue | Delhi Rent Control Act, 1958 - Sections 2, 14(1), 14D, 14(6), 25B, 25B(5) and 25B(8); Constitution of India - Article 227; Mohammedan Law |
| Citation | 2010 (166) DLT 443 |
| Judgement Date | January 12, 2010 |
| Court | High Court of Delhi (India) |
Judgment:
Rajiv Sahai Endlaw, J.
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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 25B(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.
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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.
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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. 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. 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 v. 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.
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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. 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.
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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...
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