Shri Daya Nand and Others vs Shri Fateh Chand Thareja and Others

Indermeet Kaur, J.—Fateh Chand, plaintiff had filed a suit for possession and arrears of rent against the defendant Daya Nand. plaintiff alleged that he was the joint owner of property No. 472/1(6) and old No. 23, Chisti Chaman near Bhagat Singh Marg, Kishanganj, Delhi in terms of a sale deed dated 26.9.1956. He was the landlord of the house in question. It had been tenanted out to Man Singh, the deceased father of the defendant Daya Nand. Man Singh had attorned to the plaintiff and he was paying monthly rent of Rs. 9/- per month. The tenancy commenced on the first day and ended on the last day of each calendar month. Man Singh paid rent upto 31st August, 1972. Thereafter, he fell in arrears. Legal Notice dated 31.8.1975 was served upon Man Singh to pay up the arrears. Tenancy of Man Singh was, thereafter, terminated vide notice dated 31.8.1977, from which date he became a statutory tenant. Defendant No. 1 was living with Man Singh, but he was an earning member and was not financially dependent upon his father. At best, under Explanation II of Section 2(l) of the Delhi Rent Control Act, 1958, a protection was available to Daya Nand for a period of upto one year from the date of death of his father, i.e., from 14.3.1976. Defendant has no right to further continue in the suit property.

Defendant had contested the suit. Preliminary objection was that Smt. Sarti Devi, wife of Man Singh had inherited the tenancy and she had ordinarily been living with her husband in the premises prior to his death. It was denied that the tenancy was terminated during the lifetime of Man Singh.

The trial court had framed four issues. Issue No. 2 related to the objection of the defendant on the maintainability of the suit on the ground that Sarti Devi, the wife of Man Singh, had inherited the tenancy rights, and as such the present suit was not maintainable. The Trial Judge had examined the testimony of seven witnesses on behalf of the plaintiff and three witnesses on behalf of the defendant. After considering the entire gamut of the oral and the documentary evidence, the Trial Judge had held that the family of the deceased, including Sarti Devi, were ordinarily living in the village and not with Man Singh. The present suit was filed after one year from the demise of Man Singh and Daya Nand, and his son, not being financially dependent upon his father, the question of the inheritance of the tenancy did not arise. The suit of the plaintiff was decreed in his favour.

The Additional District Judge vide impugned judgment dated 11.4.1983 had endorsed the findings of the Trial Judge.

In second appeal on 12th September, 1983, the following substantial question of law had been formulated:

Whether the suit for eviction was maintainable without impleading all the legal heirs of the deceased tenant, particularly his widow who was admittedly alive.

Before this Court, it has been urged by the Learned Counsel for the appellant (who was the defendant/tenant in the courts below) that the judgment of the Trial Judge endorsed by the appellate court, is void ab initio. Both the courts below have mis-appreciated the facts; attention has been drawn to the versions of PW-1 and PW-7. It is stated that these statements of the abovenoted witnesses clearly show that Sarti Devi was, in fact, living with Man Singh; she was also financially dependent upon him. In this view of the matter, both the Courts below have erred in holding that Sarti Devi was not ordinarily living in the tenanted premises along with Man Singh; she had inherited the tenancy after the death of Man Singh and, as such, the suit filed by the plaintiff was not maintainable. Attention has also been drawn to the written statement filed by the appellant before the trial court, where also this objection had been taken.

Arguments have been countered by the Learned Counsel for the defendant. It is submitted that all these submissions now sought to be made by the Learned Counsel for the appellant are all fact findings given by the two courts below and this Court sitting in second appeal cannot interfere with findings of fact.

Trite it is to say that this Court is sitting in second appeal and is conscious of the fetters imposed upon it to interfere in findings of fact. Both the courts below have given concurrent findings to the effect that Sarti Devi was not ordinarily living with her husband Man Singh; she was a temporary resident; she was living in the village and used to come to live with her husband off and on. She had not inherited the tenancy from her husband. The findings of the first appellate court in this regard are relevant and are extracted as under:

After appreciating oral and documentary evidence, the trial court has come to the conclusion that the wife of the deceased tenant was living in the native place and not at Delhi with her husband. This is essentially a finding of fact and is based on material available on the record. This finding is not unreasonable and material evidence available on record justifies this finding. I do not find any ground to differ from the trial court on this finding.

It is not disputed before this Court that Man Singh had died as a statutory tenant. His tenancy could be inherited by his widow on two twin conditions as contained in Section 2(l) of the Delhi Rent Control Act, 1958.

(i) if she had been ordinarily living with a person as a member of his family upto the date of his death; and

(ii) if she was financially dependent on the deceased person on the date of his death.

Under Explanation II if she was not financially dependent on the date of his death she acquired a right to live in the tenanted premises for a limited period of one year.

The concurrent findings of both the courts below were that Sarti Devi was not ordinarily living with her husband upto the date of his death. As such, she was not entitled to inherit the tenancy. These findings of fact cannot be re-appreciated and gone into by a third court. This Court sitting in second appeal can only go into substantial questions of law.

It has also been brought to the notice of this Court that Smt. Sarti Devi had since expired.

The question of law formulated by this Court is, accordingly, answered as follows. The suit was maintainable without impleading the widow of Man Singh, namely, Sarti Devi as she and other members of family of Man Singh had not inherited the tenancy from Man Singh. Accordingly, the suit for possession as framed and filed by Fateh Chand was maintainable.

There is no merit in the appeal. Dismissed.