VARDESH CHANDER CHANANA Vs. PREM NATH

JUDGEMENT

(1.) This second appeal on behalf of the landlord under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter called 'the Act') is directed against an order dated 19th September, 1977 of the Rent Control Tribunal, Delhi reversing the judgment and order of eviction against the appellants passed by the Additional Controller on 31st July, 1972 and finally dismissing the eviction application. Behari Lal predecessor of the respondents was a tenant on the. first floor and the Barsati floor of property No. 11320/1 Plot No. 14-A/41, Western Extension Area, Karol Bagh, New Delhi under the appellant. He died in 1962 leaving behind his widow Smt. Durga Devi, five sons and three daughters. Smt. Durga Devi died on 29th June, 1967 leaving behind the respondents as her heirs and legal representatives. The respondent thus became tenants being heirs of Behari Lal and Smt. Durga Devi under the appellant, After the death of Behari Lal, his widow Smt. Durga Devi built a property on Plot No. 14-A/47, Western Extension Area, Karol Bagh, New Delhi sometime in 1965 or 1966 and acquired vacant possession thereof.. As already stated, she died on 29th June, 1967 and therefore the said property was inherited by the respondents as her heirs. The present eviction application was filed on 14th February, 1968 claiming eviction of the respondents under Section 14(l)(h) of the Act. The appellant alleges that Smt. Durga Devi occupied her newly built house for residential purposes during her life time and that after her death the respondents being owners of the same acquired vacant possession of the said property and as such the respondents are liable to eviction. The appellant further alleges that respondents 1,3, 6 and 8 have also got their separate accommodation for their residence. The respondents set up a Will dated 10th December, 1966 alleging that the property built by their mother devolved upon Ravinder Kumar, Rajinder Kumar and Smt. Santosh, respondents 4, 5 and 7 respectively, that their mother dls-inherited all other respondents from the said property. The other respondents plend that they have not acquired the vacant possession of any portion of the property built by their mother. The validity of the eviction notices is also denied. The Additional Controller, as already stated, by his judgment dated 31st July, 1972 passed, an order of eviction against the respondents holding that the Will set up by the respondents was not a genuine Will, that the respondents acquired vacant possession of the property at Plot No. 14-A/57, Western Extension Area, Karol Bagh, New Delhi and that valid notice of eviction was served upon the respondents. Prem Nath and Pran Nath respondents filed an appeal challenging the eviction order dated 31st July, 1972 before the Rent Control Tribunal. The Tribunal accepted the appeal holding that the eviction notice was not validly served as it was served on some of the heirs of Behari Lal and not upon ail. Consequently, the Tribunal dismissed the eviction application and hence this second appeal.

(2.) Learned counsel for the appellant submits that the notice of eviction was duly served upon all the respondents and in any case he says that notice of eviction is not necessary to be served upon the respondents for claiming eviction under the Delhi Rent Control Act, 1958. He relies upon the latest Supreme Court judgment in V. Bhannapal Chettiar vs. Yesodai Ammal, AIR 1979 S.C. 1745(1). Learned counsel for the appellant further submits that Smt. Durga Devi widow of Behari Lal admittedly built a property at Plot No. 14-A/47, Western Extension Area, Karol Bagh, New Delhi which was inherited by the respondents. He says that the respondents have thus acquired vacant possession of the said property and therefore they are liable to be evicted on the ground mentioned in Section 14(l)(h) of the Act. This appeal is being contested only by respondents 1 and 2, namely, Prem Nath and Pran Nath and their learned counsel submits that the Tribunal has not given its findings on merits and therefore the appeal should be remanded for decision on merits in accordance with law. Learned counsel for the appellant however submits that there is sufficient evidence on record and that remand of the case would only cause delay and increase costs to the parties. He says that the eviction petition was filled in 1968 and that it should be decided at the earliest. Section 103 of the Code of Civil Procedure reads as under : "S. 103 : Power of High Court to determine issue of fact: In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,

(3.) Counsel for the parties have taken me through the evidence on record. The Additional Controller has returned the finding that the Will in question is not a genuine Will and this fact has been further confirmed by the District Judge in Probate Proceedings by his order dated 15th March, 1980. Learned counsel for the respondents has also not challenged this finding. of the Additional Controller. I, therefore, hold that the Will dated 10th December, 1966 is not a genuine Will and that the property built by Smt. Durga Devi, mother of the respondents on Plot No. 14-A/47. Western Extension Area) Karol Bagh, New Delhi was inherited by all the respondents on her death. She died on 29th June, 1967. Mr. Murari Lal Jain, Advocate. A.W. 2 visited the saidpropsriy on 23rd August, 1967 at the in- siance of the Controller in an earlier proceeding between the parties. In the report .Ex.A. 1 he says tha three rooms on the ground floor were lying vacant, thal: the three rooms on the first floor were in possession of one S. Raja and she second floor was in possession of one Raghunath. This was the position as on 23rd August, 1967. Thus it is clear that the ground floor according duto this report of the Commissioner was lying vacant on that date. A clerk from the Telephone Department A.W.1 deposes that a telephone was installed in the name of I.B.M. World Trade Corporation, New Delhi in the said premises which was in the name of S. Raja on 2nd September, 1967. He further slates that the said telephone was shifted thereafter to D-252, Defence Colony, New Delhi. The statement of this witness was recorded on 29th October, 1968. Thus it seems that S. Raja of I.B.M World Trade Corporation who was occupying the first floor also shifted from the said property. The appellant-landlord as A.W. 4 states that S. Raja occupant of first floor vacated the property, that second floor was in occupation of the respondents, that on the ground floor Smt. Durga Devi was residing who died on 29th June, 1967 and thereafter the property has been in occupation of the respondents. He also says that Ram Nath resides in Naiwala, that Pran Nath resides in Delhi Cantt; that Smt. Sanjogta is at Chandigarh and Smt. Swaran is at Rajinder Nagar. So this is the evidence on behalf of the landlord to show that after the death of Smt. Durga Devi mother of the respondents, the property in question built by her was vacated by the tenant on first floor and that the entire properly thereafter has been in possession of the respondents. The evidence on behalf of the respondeniS is to the effect that Smt. Durga Devi, mother of the respondents was residing in her newly built house and she died in that house; that Prem Nath used to reside in the suit house while the two brothers and one sister used to reside in the house built by their mother. Pran Nath, R.W. 4 is in Air Force. He says that his family resides in the suit premises when he is on duty in Forward Area. Prem Nath, respondent appeared as R.W.6. He says that his mother constructed the house in 1966, that he, his brothers Ram Nath and Prem Nath were not given any right in the house of their mother under the Will; that Ravinder Kumar, Rajinder Kumar and Smt. Santosh have been in occupation of the newly built house since 1967, that he lives in the suit premises. The contention of the learned counsel for the respondents is that respondents 1 and 2 in this appeal never acquired vacant possession of any portion of the house built by their mother, that the Will was not contested by them and at best these respondents are heirs along with other six children of Smt. DurgaDevi, that the eight respondents, in the absence of the Will inherited the said property and there is no residential accommodation so that each respondent may inherit even one room for his residence. His argument is that if one respondent does not inherit one room for residence it cannot be said that a respondent has acquired vacant possession of a residence within the meaning of Section 14(l)(h) of the Act. His argument, in other words, is that the newly built house by Smt. Durga Devi though inherited, by the respondents is not a residence for accommodating all the respondents. Section 14(l)(h) of the Act of 1958 reads as under: