A.S. Anand,; V.N. Khare and; M. Srinivasan, JJ.
1. In this appeal by special leave, the findings recorded by the learned Rent Controller and the order of the High Court of Delhi upholding those findings, dismissing the eviction petition filed by the landlord, are put in issue.
2. The appellant landlord filed a suit on the ground of bona fide requirement of the premises under Section 14(1)(e) of the Delhi Rent Control Act, 1958. The case of the appellant was that she required the premises for her own residence as well as for the residence of her husband, who was due to retire from army service in May 1979 and was till then in occupation of government accommodation.
3. Prior to the filing of this eviction suit by the appellant, it transpires that there was some dispute with regard to the shares in Property No. 16-A/5, Western Extension Area, Karol Bagh, New Delhi, owned by late Shri M.L. Malhotra, who died in the year 1969, between his two sons and two daughters. In the Partition Suit No. 810/77, the High Court of Delhi passed a decree on 19-9-1977, apportioning the properties between the two sons and the two daughters. The portion of the property which fell to the share of the appellant, under the partition decree, was the one which was tenanted by the respondent. The decree in the partition suit dated 19-9-1977 became final as no challenge to it was made by any of the parties.
4. In the eviction proceedings out of which this appeal arises, the learned Rent Controller, after hearing the parties, returned a finding that the partition which had taken place on 19-9-1977 was “a sham transaction” and since the partition was “a sham transaction”, the entire property had continued to be joint between the brothers and sisters and the need of the appellant, who was thus the co-owner of the property along with her two brothers and a sister, could not be said to be bona fide as apart from the tenanted premises, there were other available flats of which she was the co-owner. The eviction petition was accordingly dismissed. The High Court in revision by the appellant, upheld the findings recorded by the learned Additional Rent Controller and agreeing with the finding that the partition effected in 1977 was “a sham transaction”, dismissed the revision petition.
5. We have heard learned counsel for the parties.
6. That the partition suit had been decreed on 19-9-1977 by the High Court is not in dispute and since that judgment and decree had acquired finality, both the learned Additional Rent Controller and the High Court while dealing with the eviction proceedings under the Delhi Rent Control Act, exceeded their jurisdiction in pronouncing upon the partition decree as “sham transaction”. The finality of the judgment and decree in the partition suit could not be questioned in any collateral proceedings by a third party to the partition suit. The learned Rent Controller had no jurisdiction to pronounce upon the correctness, or otherwise of the judgment and decree of the High Court dated 19-9-1977 in the partition suit. The High Court, while hearing the revision petition in the eviction proceedings, also fell into a similar error and committed a jurisdictional error in agreeing with the learned Additional Rent Controller to hold that the partition decree was “a sham transaction”. The very basis for non-suiting the appellant, therefore, was erroneous.
7. In the face of the judgment and decree dated 19-9-1977, the appellant who owns only one flat, which is tenanted to the respondent, was required by her for her own occupation and for the occupation of her husband, who had retired from the army. The need of the appellant could not be said to be anything but bona fide. Admittedly, it is nobody's case that the appellant owns any other property. The courts below wrongly held her need not to be bona fide and Mr Mahajan, learned Senior Counsel appearing for the respondent has been unable to persuade us to agree with the findings recorded by the courts below.
8. In the light of what we have said above, we find that the order of the learned Additional Rent Controller and that of the High Court which suffer from jurisdictional error cannot be sustained. The same are hereby set aside and the eviction petition filed by the landlord shall stand allowed.
9. At this stage, Mr V.C. Mahajan, learned Senior Counsel appearing for the respondent submits that the respondent has been in possession of the property for the last over 35 years and that sufficient time may be granted to the respondent to vacate and hand over the vacant possession of the premises. Learned counsel for the appellant does not oppose the prayer for grant of time but submits that some reasonable time only may be granted.
10. In the facts and circumstances of this case, we grant time to the respondent tenant to vacate and hand over vacant possession of the premises to the appellant on or before 31-5-1999, subject to filing of the usual undertaking within four weeks from the date of this order.
11. Subject to the above, this appeal succeeds and is allowed. The impugned judgment and decree is set aside. There shall, however, be no order as to costs.