Chandu Lal vs Puran Devi

Shiv Narayan Dhingra, J.—The petitioner is aggrieved by the order of learned ARC dated 21.11.2007 whereby learned ARC allowed the eviction petition filed by the landlady on the ground of bona fide requirement.

The landlady and tenant in this case are related to each other. Tenant is brother in law of the landlady. She filed an eviction petition in respect of a room in occupation of the tenant pleading that he was indicted in this room in 1989 at Rs. 100 per month. The petitioner herself has six children i.e. four daughters and two sons. One of the daughters and one of the sons are married. The married daughter of the petitioner used to visit the parental home regularly; whereas other children of the petitioner are also grown up and require separate rooms for their studies. The petitioner's married son also has four children who are school going. The present accommodation in occupation of the petitioner consisting of two rooms is highly insufficient to accommodate entire family.

The respondent/tenant in his WS denied the relationship of landlord-tenant with the landlady and pleaded that the premises was in his possession adversely to the predecessor of the landlady for last three decades. He had not paid any rent to the landlady and he has been residing in the said premises in his own right. Regarding bona fide need, he pleaded that the landlady had sufficient accommodation to live with her family. She was in possession of two rooms on ground floor and two rooms on first floor. She had let out one room at the first floor to one Sh. Raj Kumar and did not require any further accommodation.

The landlady proved her ownership over the premises vide Registered sale deed dated 24.7.1987 and testified that the petitioner was inducted in one room of the property at a monthly rental of Rs. 100 p.m. However, she admitted that he did not pay rent from the very inception. She deposed that the property in question was purchased from its previous owner by all the tenants who were in occupation. The tenants purchased the portions in their respective occupation. The respondent earlier was living with his father and after the purchase of the property, he requested for this room to be let out to him and this was given to him.

During pendency of this petition the landlady filed another civil suit against the present petitioner alleging that the present petitioner was tenant in respect of the premises in question and when she demanded the rent he threatened that he will sell the property and go away. In view of this threat, she prayed to the court that a permanent injunction be issued against the present petitioner and he be restrained from transferring or creating any third party interests in the property in question. In this civil suit, the Civil Judge recorded evidence of both the sides and decided two questions; i) whether there was a relationship of landlord-tenant between the landlady and petitioner, ii) whether there was a cause of action. Ld. Civil Judge vide his order dated 14.8.2006 gave a finding that the plaintiff has succeeded in proving the relationship of landlord and tenant between the parties but she failed to prove the cause of action in her favour. Against this order of Civil Judge, landlady preferred an appeal and in this appeal again petitioner herein raised the same issue that there was no relationship of landlord and tenant and there was no cause of action. Petitioner filed written arguments before the appellate court taking these grounds. The appellate court observed that the tenant had not filed any cross objection or cross appeal against the order of the Civil Judge. The order of the Civil Judge regarding relationship of landlord and tenant between the parties was confirmed by the appellate court. The Appellate Court also came to the conclusion that there was sufficient cause of action in favour of the landlady and decreed the suit of the landlady restraining the respondent from sub-letting or parting with possession of the suit property vide his order dated 30.8.2007. No further appeal was preferred against the order of the appellate Court became final.

Learned ARC observed that the relationship of landlord and tenant can not be re-agitated between the parties and findings given by the Civil Judge were binding by the Rent Controller and therefore the issue of relationship of landlord and tenant between the parties stands at rest. Regarding bona fide necessity, the Ld. ARC came to the conclusion that as per evidence the family of landlady consisted of herself, her husband, four unmarried children, one married son having four children and one married daughter. The extent of family was not disputed by the tenant. The accommodation presently in occupation of the landlady/petitioner was definitely insufficient to accommodate her family members dependent upon her. Regarding letting out of one room at first floor to one Raj Kumar, ld. ARC found that tenants own witness i.e. RW-2 deposed that the said room on the first floor had not been let-out by the landlady to Rajesh. He had been residing there prior to her purchase of the property.

The other plea raised by the petitioner is that the landlady was in occupation of two rooms on the ground floor but she had shown only one room in her occupation at the ground floor and one room at the first floor. The learned ARC considered this and found that PW-1 i.e. landlady in her statement has clarified that there was only one room at the ground floor and only a small portion of the said room, which was earlier used as kitchen, has been converted into a shop since she had no means of livelihood.

The petitioner assailed the order of the learned ARC on the ground that the ARC wrongly considered that issue of relationship of landlord and tenant has been set at rest. He submitted that the decision of the Civil Court was not directly on the point and the issue of the landlord and tenant was not directly before the Civil Court. The principle of res judicata would apply only when the matter was directly and substantially in issue before Civil Judge. If the matter was incidental in the previous proceedings the issue would not be res judicata. He relied upon Sajjadanashin Sayed Md. B.E.Edr. (D) By Lrs. Vs. Musa Dadabhai Ummer and Others, .

The Supreme Court in above Judgment observed that a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter directly and substantially in issue but it does not mean that if the matter is one in respect of which no relief is sought, it is not directly or substantially in issue. It may or may not be in issue. It is possible that it was directly and substantially in issue and may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of each case.

In the injunction suit filed by the landlady, the petitioner's main contention was that there was no relationship of landlord and tenant and the question of paying rent to the landlady does not arise. He claimed to be in occupation of premises in his own right. Thus, the question of the relationship of the landlord and tenant was directly and substantially in issue before the Civil Court. It was not an incidental issue. The Civil Court first addressed itself to this issue and then addressed to the second issue whether there had been a threat given by the tenant as alleged by landlady. Thus the decision of the Civil Court on the issue of landlord and tenant would operate as res judicata. I consider that the learned ARC rightly came to this conclusion.

The other ground taken by the petitioner is that the landlady misrepresented before the learned ARC by showing false measurement of the room in her possession at the ground floor. The room in her possession at the ground floor was not measuring 99.87 sq. ft. as alleged by her but it measured 198.7 sq. ft.

I consider that it would make no difference even it is considered that the measurement of the room was 198.7 sq. ft. and not 99.8 sq. ft. The family of the landlady is so large that even if size of one room is considered what is stated by the petitioner, her bona fide necessity would not evaporate. Her family consists of, as already stated, herself, her husband, four unmarried grown up children, one married son having four children and one married daughter. She required one bed room for herself and her husband, one bed room for her married son, one study room for the children of married son, at least three bed rooms for her four unmarried children, one drawing cum dinning and one guest room for visiting married daughter and her family. In view of this requirement, the accommodation of three or four rooms was highly insufficient for the purpose of proper living and her requirement was bona fide.

I find that there is no force in this petition. The petition is hereby dismissed. The order of the learned ARC is upheld.