Shri A.N Pareekh, tenant, has brought this petition under S. 25B(8) of the Delhi Rent Control Act (hereinafter referred to as ‘the Act’) challenging the eviction order dt. April 2, 1987, of Shri Prem Kumar, Additional Rent Controller, passed against him on the ground of eviction covered by Cl.(e) of sub-sec.(1) of S. 14 of the Act in respect of the southern unit of house No. z-7, Hauz Khas, New Delhi, as shown in red colour in the plan Ex.AW1/1.

2. The petitioner has challenged the order of eviction on two grounds, firstly, that the finding of the Additional Rent Controller that the premises in question had been let out to the petitioner-tenant only for residential purposes is perverse and wrong and secondly, that the Additional Rent. Controller has wrongly come to the conclusion that the respondent-landlord is not in possession of alternate reasonably suitable accommodation.

3. The facts, in brief, are that the respondent has been holding high official positions in the Government as he held the post of Secretary, Central Board of Revenue, later on Commissioner of Income-tax, Director of Inspection, Income-tax. Investigation, a job equivalent to the post of Joint Secretary, Ministry of Finance and he retired as permanent Commissioner of Income-tax in the year 1964. He was occupying house No. C-1/7, Harding Avenue, New Delhi, which was quite a palatial house comprising of three bed rooms, dining drawing rooms, office room verandah, garage, servant quarters and lawns. He purchased the plot of the property in question in the year 1959 vide sale deed, certified copy of which is Ex.AW10/1 and he completed the construction on the said plot in July 1966, which comprises of two units, namely, southern unit and northern unit, each having the accommodation comprising of drawing room, dining room, kitchen, bath room on the ground floor, three bed rooms, two bath rooms and covered verandah on the first floor and a servant quarter with lavatory-cum-bath room over the garage and the northern portion also has a barsati floor comprising of one big room converted into two rooms and facility of toilet. Since the completion of the house, the respondent lived in that thouse with his wife upto April 1969. Respondent has no issue of his own. His wife has a daughter from her previous marriage and AW1 Shahida Latif is the grand-daughter of respondent's wife from that daughter. It is undisputed before me that from her very birth, Shahida Latif (since about 1939) has been brought up by the respondent as his daughter although according to the tenets of Personal Mohammedan Law applicable to the respondent he could not legally adopt any daughter yet he has been treating AW1 as his daughter for all these years. It is the respondent who got her married. From the wedlock two daughters have been born in the year 1967 and 1969. Shahida Latif was married in the year 1964. Respondent had got assignment as Additional General Manager in M/s. Geep Flash Light Industries Limited, Allahabad and he joined that post with effect from May 1, 1969. His wife also joined him at Allahabad in July or August, 1969. Respondent's adopted daughter and her family were allowed to live in the northern portion of the house for residential purposes but after the respondent's wife also shifted to Allahabad, the entire house was given in the use and occupation of AW1 and her family members and the respondent had taken all his luggage from the said house to Allahabad in August, 1969. It is the case of the respondent that after about a year and a half Shahid Latif in one of her letters apprised him about some theft having taken place in the neighbourhood and on account of security reasons and also that southern half of the portion was kept neat and clean that respondent decided to let out the southern portion of the house for residential purposes for short durations so that the same could become available to the respondent and his wife when respondent's assignment at Allahabad was to come to an end. Initially the said portion was let out to one Bhajan Lal Sajjan Kumar with effect from August 15, 1970, for a period of 11 months at the rental of Rs. 500/- per mensem for the accommodation and Rs. 300/- p.m hire charges for electrical equipments and furnishings and fittings, but the said tenant vacated the premises after three months and the same premises including garge but excluding the barsati floor came to be let out to M/s. Alok Udyog Limited on the same rent and hire charges with effect from Jan. 1, 1971, for a period of one year vide letter of tenancy Ex.AW6/1 for residential purpose only and that tenant came to vacate the premises on Nov. 30, 1971. The respondent has, in his testimony which remained unhallenged, mentioned that he had received two offers for renting out the said accommodation for better rent with more security but in view of the recommendation of Mr. Ahsan Rizvi, a common friend of the parties, respondent agreed to let out the said premises to the petitioner for purposes for a limited period of 11 months and in view of the fact that the petitioner was a very close friend of Mr. Rizvi, who in turn was close friend of the respondent, the petitioner was required to give only one month's rent as security deposit instead of six month's rent which was offered by other prospective tenants. Before the lease was finalised with the petitioner, on Nov. 6, 1971, the respondent had written a letter to Mr. Kalbe Ali Khan, who was negotiating the tenancies of the said portion with different persons on behalf of the respondent. It was made dear by the respondent that the premises are to be let out to the petitioner on the same terms and conditions on which the premises were let out to the tenants earlier. Ex.AW10/3 is the copy of the said letter which was also endorsed to the petitioner vide covering letter Ex.AW10/4 (copy). Admittedly, the possession of the premises in question was delivered to the petitioner and his tenancy commenced from Dec. 1, 1971, at the same rent on which the premises stood let out to the previous tenants. The terms of the tenancy came to be incorporated in two agreements, one pertaining to the accommodation and the other regarding the hire charges for electrical equipments, fittings and furnishings. Those agreements were executed on Dec. 20, 1971, which are Ex.AW10/5 and marked ‘X’. Necessary deficiency in the stamp duty and the penalty imposed thereupon had been already deposited by the respondent and only objection which was raked with regard to admissibility of this particular document was about its non-registration. However, the Additional Rent Controller has, after making reference to the case law on the point, come to the conclusion that the term with regard to the letting purpose incorporated in this particular document can be read into evidence at a collateral term in view of S. 49 of the Registration Act. This legal proposition has not been challenged before me. So, according to the written agreement between the parties, the premises had been let out to the petitioner for residential purposes only.

4. Shahida Latif and her family members continued to live in the northern portion of the said house till 1974. In 1974, her husband shifted to Howard University as he obtained some fellowship there. He took his wife and children along with him and admittedly he has been in service outside India since then and presently he has got a job in the World Bank since 1976 and is living in U.S.A along with his wife and children but the luggage belonging to Shahid Latif continued to remain in the northern portion of the said house and it is a fact that Shahida Latif and her family members have been visiting India almost every year and staying in the said portion of the house for 2-3 months regularly every year. The Additional Rent Controller has given in detail the period when Shahida Latif and her family members came back to India and lived in that portion of the house. Thin portion was also temporarily given by Shahida Latif to her dose friend Mrs. Bhatia for some period in 1975-76. There was one domestic servant named Bachan, who originally was employed by the respondent but after the respondent shifted to Allahabad, that Bachan came in the employment of Shahida and it is proved on record from various documents that Shahida had been paying him his salary and he continued to reside in the servant quarter of the northern portion with his wife and children and for a short period even he was taken to Colombo when Shahida's husband came to be posted there.

5. The respondent's assignment at Allahabad was going to close, so he in anticipation wrote a letter dt. Sept. 1, 1978, Ex.LCA/2, requesting the petitioner to vacate the house. In this letter it was clearly mentioned by the respondent that he wanted to reside in his own house after shifting from Allahabad as his assignment is to come to an end by Sept. 1979. He also made reference to an understanding already given by the petitioner for vacating the house when respondent was to finish his assignment at Allahabad. The petitioner had sent the reply (Ex. AW10.R4) dated Sept. 1978 wherein he denied that he had given any such understanding for vacating the house and he refused to vacate the house mentioning that the respondent has sufficient accommodation for his residence in the northern portion of the said house. The respondent had served a legal notice dt. 7/8th Mar. 1979, copy Ex.AW10/7, in which it was clearly pleaded by the respondent that the premises in question had been let out to the petitioner for residential purposes and he required the petitioner to vacate the premises and he terminated his contractual tenancy. The petitioner had sent the reply (Ex.AW10/12) dt. Mar. 27, 1979, wherein while controverting the need of the respondent for the premises in question, did not specifically controvert the fact that the premises in question had been let out to him for residential purposes only.

6. It is the case of the respondent that the northern portion of the house has been given by him to his adopted daughter and the same is in possession of the daughter and is not available for residence of the respondent and his wife, so he bona fide requires the premises in question for his own residence and for residence of his wife.

7. The petitioner filed an application seeking leave to defend in which he pleaded that after the expiry of 11 months mentioned in the lease deed, month to month tenancy came into existence and the respondent met him and he apprised him that he was using the premises for his office as well and the respondent agreed to the same. So, a clear case was set up even in the written statement by the petitioner that after the initial tenancy of 11 months terminated, there was an agreement between the parties that the petitioner could use the premises in question for his office as well.

8. The leave to defend application was allowed on Nov. 6, 1979. On Nov. 27, 1979, the respondent gave an application to the Competent Authority under the Urban Land (Ceiling and Regulation) Act seeking permission to gift the northern portion of the said house to his adopted daughter Shahida Latif. On the following day necessary permission was granted. On Nov., 28, 1979, Shahid Latif executed the Special Power of Attorney in favour of her husband who had come to India and the respondent made an oral gift of the northern portion of the house in favour of Shahida Latif which was accepted by her husband on her behalf and a memorandum of the said oral gift was duly executed on Nov. 30, 1979 and thereafter the respondent amended his eviction petition in order to take the plea that as he had gifted the northern portion of the house in favour of Shahida Latif, so the same is not available to the respondent for his own residence. The petitioner has challenged this oral gift pleading that the same is a sham and bogus transaction and at any rate amounts to self-inducted insufficiency of accommodation on the part of the respondent which disentitles him to claim eviction of the petitioner on the ground of bona fide requirement. He has pleaded that this dubious gift has been brought into existence by the respondent in order to defeat the petitioner's right as tenant and the same should be completely ignored and it must be held that northern portion of the house is available to the respondent and his wife for their residence and as a matter of fact they have been residing in that portion after the respondent's assignment at Allahabad came to an end. It is also the case of the petitioner that at any rate, he has been using the premises in question for his office as well from the very inception of the tenancy to the knowledge of the respondent who has been visiting him in his office at different periods, so the respondent is now estopped from urging that the premises had been let out only for residential purposes. It was also pleaded that the respondent has been on very friendly terms with the petitioner and at one point of time the petitioner had made a gift of a whisky bottle to the respondent when he visited him in his-office on the ground floor of the premises in question and so the letting purpose of the premises stood changed as the respondent never protested or objected to the user of the premises by the petitioner for his office purpose for all these years.

9. I would first deal with the question of letting purpose. The stand taken before the Additional Rent Controller by the petitioner was that firstly the lease deed in question cannot be looked into at all as it was required to be registered compulsorily and being not so registered is inadmissible in evidence to prove the terms of the lease incorporated in that document; secondly, that the tenancy had commenced with effect from Dec. 1, 1971, by oral agreement with delivery of possession through the agency of Kalbe Ali Khan and it was agreed between Kalbe Ali Khan and the petitioner that the premises could be also used by the petitioner for his professional office. Both these pleas were negatived by the Additional Rent Controller with elaborate reasons and discussion of evidence. I also agree with the reasons given by the Additional Rent Controller in giving the finding that unregistered document of lease can be looked into to know the purpose of letting because the said term can be deemed to be collateral matter. I would have elaborated the reasons in support of this conclusion with reference to the case law already referred to in the judgment of the Additional Rent Controller but fortunately Dr. Singvi did not challenge the finding of the Additional Rent Controller that initially the letting purpose was residential in nature as per the term settled in the lease deed. It is not out of place to mention that there was no plea taken by the petitioner in the written statement that any agreement of letting took place between him and the Kalbe Ali Khan, rather in reply to the notice before the fling of the eviction petition the petitioner had categorically admitted that the initial letting took place for 11 months as per written lease deed and thereafter he became a statutory tenant on the same terms and conditions. So, this plea of the petitioner that initially the agreement was made for enabling the petitioner to use the premises for office purpose was an afterthought plea urged only during the course of evidence and final arguments. It is because of this reason that now the finding of the Additional Rent Controller that initially letting permitted only residential user of the premises is not being controverted before me.

10. It is also significant to mention that in exchange of correspondence between the parties already referred to above, the petitioner never came up with the plea that he had been let out the premises in question for composite purposes and thus the ground of bona fide requirement for residence being urged by the respondent is not available to him in accordance with law. In Gobind Ram Bansal v. Narinder Singh (1984) 25 DLT (SN) 4, the landlord had served a notice pleading that the premises had been let out for residential purpose and he bona fide required the premises for occupation for residence for himself but in reply to the said notice the tenant did not controvert the averment of the landlord that the premises had been let out for residential purposes only but in the pleadings the tenants tried to set up the case that the premises had been let out for residential-cum-commercial purpose. The Court held that this particular plea of the tenant is an after-thought plea and keeping in view the other facts and circumstances of the case it was held that the premises had been let out for residential purposes only. It is to be remembered that notice to quit has been served on the petitioner, who is a lawyer by profession and he in his reply to the notice had challenged the need of the landlord for the premises in question for his own residence pleading that the landlord is in possession of the other house which is more than reasonably suitable for him but with regard to the letting purpose being residential which was clearly highlighted in the notice by the respondent-landlord the petitioner did not utter even a single word denying that averment. In this background it is to be seen whether the other plea of the tenant-petitioner that there had come about any other agreement between the parties after the expiry of fixed period of tenancy mentioned in the lease deed has any merit the finding given by the Additional Rent Controller is that no such fresh agreement came into existence. He has noticed the averments made by the petitioner himself that after the expiry of the fixed period of tenancy given in the lease deed he became statutory tenant. If that is so, obviously there could not have come about any oral agreement between the parties with regard to the terms of the tenancy although in the written statement the petitioner specifically pleaded that after the expiry of the fixed period of tenancy an oral agreement had come into existence between the parties but in his testimony in Court he clearly did not support this plea by giving any categorical statement that at any particular point of time any agreement was made between him and the respondent with regard to the letting purpose.

11. The only contention raised before me by the learned counsel for the petitioner is that the petitioner has been using the demised premises for his office purpose as well to the knowledge of the respondent and the respondent having not raked any protest or objection to such user it should be held that the letting purpose changed from residential to residential-cum-office purpose. It appears that during the course of the trial the petitioner had given a long list of witnesses to prove that in fact his clients have been coming and seeing him in the room described as drawing room which he has been using as office. The Additional Rent Controller has not allowed that application for summoning so many witnesses as the list of witnesses was filed belatedly and no good reason was given for not filing the list of witnesses in time. The matter went up in appeal before the Rent Control Tribunal. The Tribunal disposed of the matter on the basis of statements made by the parties which I reproduce as follows :

“Statement of Shri A.N Pareekh, appellant, on SA. ..........

I have been using the entire ground floor for my professional and office purposes and one room on the upper floor whenever there is a over flow of clients with the knowledge and consent of the landlord who has several times visited the premises and also attended parties where other persons were also there The landlord had been frequently coming from Allahabad to Delhi and has been residing in the adjoining portion and he is residing in the adjoining portion for pretty long period. They are even now residing in the adjoining portion.

RO and AC

R.C.T Delhi

27-3-1985.

Statement of Shri N.H Naqvi, respondent, on SA.

Without prejudice to the inadmissibility of any oral evidence regarding the purpose of letting in the face of the lease agreement between the parties, it is stated that the appellant has been unauthorisedly and incidentally and without my consent or knowledge using for his professional work a small part of the tenanted premises, the whole of which were specifically let out for use for residential purpose for himself only.

RO and A.C

R.C.T Delhi.”

27-3-1985.

12. On the basis of these statements the Rent Control Tribunal held that no evidence is required to be led by the petitioner-tenant to prove that he had been using the premises for his professional purpose as well. The learned counsel for the petitioner has vehemently argued that the Additional Rent Controller was wrong in still giving the finding that the petitioner has not been using the premises for his office work when this fact stood admitted by the respondent-landlord before the Tribunal. This criticism of the judgment of the Additional Rent Controller on this point is not justified. It is to be noted that there was no admission made by the respondent-landlord that any particular portion of the building is being exclusively used by the tenant for his office purpose. So, in order to determine whether the letting purpose has changed or not with any implied consent of the respondent-landlord it was absolutely necessary for the Additional Rent Controller to have gone through the evidence in order to determine whether any portion has been used exclusively by the tenant for his office purpose and the Additional Rent Controller has discussed the evidence in detail and has come to the conclusion if I may say rightly that no portion of the premises has been earmarked by the petitioner-tenant for use as office exclusively. Apart from the fact that the tenant never set up the plea in the reply to the notice that the premises in question had been let out or should be deemed to have been let out for composite purposes, the petitioner-tenant also did not even in his pleadings at all specified that any particular portion of the demised premises has been exclusively used by him for his office purposes. Even believing the statements of witnesses examined by the petitioner himself fully even then it never came out clearly that the drawing room and the dining room on the ground floor were being used exclusively by the petitioner for office purposes. It was also not possible for the petitioner, in my view, to have earmarked any particular portion on the ground floor for his office purpose as admittedly he has only three bed rooms on the fist floor for living and he had to use the ground floor premises for his drawing room, dining room and for entertaining his guests. The kitchen also is located on the ground floor. So, what has been admitted by the landlord before the Tribunal was that the petitioner has been incidentally using for his professional work a small part of the tenanted premises although the whole premises had been let out for use for residential purposes. Now if the tenant, who is a lawyer by profession, has been using his drawing room for living purpose as well as for his office purpose it would not really mean that he had earmarked any particular portion of the demised premises exclusively for use as office. It has not come in evidence as to what sort of practice the petitioner is having. The petitioner might be having some selected practice of being retainer of certain companies which need not require the regular visit of his clients as it happens with a professional lawyer which would require an exclusive room as an office. May be the petitioner was having his library books in the drawing room but that by itself would not convert the drawing room into an office exclusively. Admittedly, the petitioner was having his dining table and the chairs in the dining room. So that room also was not being used by the petitioner for his office purposes exclusively. The respondent has examined witnesses to show that he has been staying at Gymkhana Club while visiting Delhi in order to show that he perhaps did not have the knowledge that the petitioner was having his professional office in the demised premises. It is not necessary to elaborately discuss that evidence because the respondent was not ignorant about the profession of the petitioner when he accepted him as tenant. It is not the case that the petitioner was having any professional office at any other place in Delhi. So, it is not possible to believe that the respondent remained unaware of the petitioner meeting his clients in the demised premises for his professional work. But when a professional man takes a particular premises for residential purposes and starts meeting his clients in a particular portion of the building besides using that portion for his living purposes that would not, in my opinion, mean that the letting purpose would change even though the landlord might be aware of this fact because no landlord could raise any objection to the visit of the clients to see the professional man at his residence even though that professional man may not have any separate office anywhere. The landlord could rake objection only if he finds that the tenant who is a professional man has earmarked a particular portion of the building exclusively for office purposes and if having that knowledge he fails to raise objection then it could be held that he has acquiesced in the change of letting purpose. Such was the case in Dr. Gopal Dass Verma v. Dr. S.K Bhardwaj, AIR 1963 SC 337, on which reliance has been placed by the learned counsel for the petitioner. In that case a substantial portion of the premises came to be used by the tenant for commercial purposes with the knowledge of the landlord and it was held that as the landlord had failed to raise any objection the letting purpose would be deemed to have changed from residential to composite purpose. In P.N Khanna v. T.P Balkani, 1986 Rajdhani LR (Note) 70, it was observed that if a person carries on even his trade or business or profession in his residential house the same would not change the letting purpose and in such a case letting purpose has to be determined from the fact of predominant purpose for which the building is used. In the present case, the facts are even stronger for the case of the respondent because here the letting purpose admittedly was residential and it could not change till there has been any fresh agreement between the parties or the tenant had used any particular portion of the premises predominantly exclusively for his professional purposes to the knowledge of the landlord. Such is not the case here. Counsel for the petitioner has referred to Dr. Dip Kaur v. Smt. Savitri Devi (1978) 2 Ren CR 149 (Delhi), this judgment is completely on different facts. In the cited case, the tenant was using a particular portion for her clinic and there was no evidence led by the landlord to prove as to what was the letting purpose agreed upon between the parties. It was also found as a fact that the tenant has used the particular premises for commercial purposes with the consent of the landlord. He has also made reference to Munshi Ram Sakhuja v. Col. Ram Parshad (Retd.) (1981) 20 DLT 37. In the cited case there was no evidence with regard to initial letting purpose. As a fact it was found that the premises had been used both for residence and also for running a clinic by the tenant to the knowledge of the landlord without any objection. So, it was held that the premises would be deemed to have been let out for residential-cum-commercial purposes and reliance was placed on the case of Dr. Gopal Dass (AIR 1963 SC 337) (supra).

13. Counsel for the respondent has brought to my notice Bipan Behari Tawakley v. Kishori Lal Mehra, (1981)1 Ren CR 386 : (AIR 1981 NOC 83). In the cited case also the tenant was a lawyer by profession, but it was found on facts that the predominant purpose for which the premises had been used was residential. Hence, it was held that the letting purpose was residential in nature only. The case of Dr. Gopal Dass (supra) was distinguished on facts. In Mrs. C. Colaco v. Urban D'Silva, AIR 1970 Mys 297, it was held that even though a house is taken for residential purpose by a professional man it does not prevent him from carrying on some professional work in the house during spare time. Some occupation and profit-making activities by such person in a small portion of the house unostentatiously and without running a shop or causing any nuisance do not amount to conversion of a residential premises into a non-residential one. As a matter of fact a professional man taking the premises for residential purpose can be supposed to carry on his professional work from the residential premises as well. It is only where the said professional man, who has taken the premises for residential, purposes, starts using some substantial portion of the demised premises exclusively for his professional work with the knowledge of the landlord without any protest from the landlord then it can be held that the letting purpose stood changed as was held by the Supreme Court in Dr. Gopal Dass's case (AIR 1963 SC 337) (supra). It is to be again emphasized that it was not even in the mind of the petitioner till the eviction petition was filed that letting purpose at any time had changed with his using the drawing room also for, his office purpose. The petitioner only tried to make out a ground of composite letting purpose during the pleadings in order to defeat the case of the landlord for bona fide requirement for residence. He went on to elaborate t hat even one bed room on the first floor also used to be used for his waiting clients when there was rush of clientage on a particular day. No such plea was taken anywhere in the pleadings. Even if it is to be believed that there has been some occasions when certain clients of the petitioner had been accommodated for waiting purposes in one of the bed rooms on the first floor that would also not lead to any inference that any portion of the demised premises had been exclusively used for professional purposes by the petitioner. It is also to be remembered that the petitioner himself had described the premises as residential while an employee from the Municipal Corporation of Delhi, who visited the premises for survey purposes, has described the drawing room not as an office but as a study room.

14. It is even the case of the petitioner that he has been meeting the respondent in the drawing room and has even given him a gift of whisky bottle. It is not the case of the petitioner that he is having any other room for accommodating his guests and friends like respondent. It is obvious that he has been using the drawing room not only for his professional purposes but also for his social purposes which go along with his residential use. The Additional Rent Controller, in my opinion, was also right in giving the finding that even if the respondent had visited the petitioner in his drawing room that would not mean that the respondent is to be deemed to have come to know that the petitioner has kept any room in the demised premises exclusively for his professional work. So, there could be no question of the respondent having acquiesced in the user of the premises for composite purposes. After all the findings given by the Additional Rent Controller are on facts after due appraisal of the evidence and unless it is shown that those findings are perverse, the High Court has no jurisdiction to intervene with such findings of fact. The High Court exercises only the revisional and not appellate jurisdiction under S. 25-B(8) of the Act. The High Court is to examine the records in order to satisfy itself that a decision of the Controller is according to law. It is true that this section confers a revisional jurisdiction wider than that S. 115 of the Code of Civil Procedure, still it has its limitations. In Smt. V.L Kashyap…Petitioner v. R.P Puri…, (1977) 1 Ren CR 49 : (AIR 1977 NOC 205) (Delhi), it has been held that the order of the Controller can be interfered with if the same is without jurisdiction or contrary to law or to the express provisions of the Act or where he has given findings which are wholly perverse, contrary to evidence or based on no evidence or where some procedural irregularity has been committed resulting in miscarriage of justice. In the present case, the Additional Rent Controller has dealt with every piece of evidence and there is no misreading of any evidence or misconstruing of any part of the evidence by the Controller which could entitle this Court to interfere with the well considered judgment of the Additional Rent Controller on question of facts. So, I endorse the finding of the Additional Rent Controller and hold that it was proved that the premises in question had been let out to the petitioner only for residential purposes.

15. The findings of the learned Additional Rent Controller with regard to the bona fide need of the respondent for the demised premises for his own residence and the respondent being not in possession of reasonably suitable accommodation are strongly challenged by the learned counsel for the petitioner. It has been argued that the learned Additional Rent Controller went wrong in culling out an admission of the petitioner from his letter dt. Sept. 1, 1978, Ed. LCA/2, that the petitioner had recognised the need of the landlord for the demised premises and it amounts to misreading of the particular document. It is true that the Additional Rent Controller had, while making a reference to the aforesaid letter, observed as follows :

“Respondent himself admitted the need of the petitioner for the house and wrote back to the petitioner vide letter Ex.AW10.R4dt. 17th Sept. 1978 that he was glad to learn that the petitioner was proposing to stay at Delhi permanently.”

I have gone through the whole of the letter and find that in that letter the petitioner categorically asserted that the respondent has in his possession the other portion of the house in which the respondent can comfortably reside. So, it is true that there is no admission of the petitioner in this letter that the respondent-landlord bona fide needs the demised premises for his own residence. Even the Additional Rent Controller was aware of this fact when he referred to the other part of the letter Where the tenant-petitioner had controverted the need of the landlord for the demised premises. So, nothing turns on this particular reference by the Additional Rent Controller to the alleged admission of the petitioner. The only thing highlighted by the Additional Rent Controller is that even the tenant does not dispute the fact that the landlord-respondent bona fide wants to live in Delhi in his own house and that fact is clear from the evidence itself. So, it cannot be held that the Controller has given the finding on merits by misreading any evidence.

16. As far as the facts are concerned, they are almost undisputed with regard to the way the landlord is accustomed to live. The landlord retired from a very high Government job and had constructed the present house for his own residence. From 1966 to 1969 the landlord lived in whole of the house with his wife and from 1966 onwards his married adopted daughter with her family members also started living with the respondent in that very house. At no point of time the respondent thought of letting out any portion of the house as long as the respondent remained in Delhi. After the respondent took up a temporary assignment at Allahabad he did not think of letting out the house, rather he allowed his adopted daughter to continue to live in the northern portion of the house where she continued to reside with her family members. The other portion was not even let out till Shahida wrote to the respondent regarding thefts having taken place in the neighbourhood and it became advisable for the landlord to let out the other portion for security reasons and also that the other portion may be kept neat and clean if it remained occupied. While narrating the facts I have already emphasized that the landlord was not keen of getting any higher rent whenever the previous tenants vacated the premises. The petitioner was chosen by him as a tenant for the said portion because he was a close friend of respondent's friend. The correspondence exchanged prior to the creation of the tenancy also amply made it clear that the premises are being let out for residential purposes and even landlord is not keen to have more than one month's rent as security and had not even cared to ask for any enhancement of rent from the petitioner. He charged same rent which was being paid by earlier tenants. It is also pertinent to mention that the landlord is accustomed to live in commodious houses as a Government high functionary he was allotted a palatial residence at C-1/7, Harding Avenue and while he remained posted at Allahabad, there also he was provided a palatial bungalow consisting of a drawing-cum-dining, two bed rooms with attached bath rooms, a big has kitchen pantry, a small store on the ground floor and two bed rooms with attached bath and big verandah on the first floor and three servant quarters, a garage and two big lawns. The landlord never wanted the tenancy of the petitioner to be terminated at any earlier point of time although the landlord had let out the premises to the petitioner for a fixed period of 11 months. At no point of time the landlord required the petitioner to enhance the rent during the period the contractual tenancy of the petitioner continued or thereafter. It is abundantly clear and not disputed before me that the respondent had brought up Shahida from her very birth, got her educated up to post-graduate degree and then performed her marriage and the landlord and his wife have been making numerous gifts even of immoveable property to the said daughter. The landlord's testimony in this regard remained unquestioned in the cross-examination.

17. The Additional Rent Controller has examined the need of the landlord from all points of view. Taking the case of the tenant at the worst that whole of the northern Portion of the house is available to the landlord for his own residence even then the Additional Rent Controller had given a finding that he bona fide requires the demised premises as well for occupation for residence for himself and for his wife. It is undisputed that both the landlord and his wife are very much advanced in ages and on the face of it they need at least some bed room on the ground floor for their residence and in the northern portion there is no bed room on the ground floor. The landlord's wife is admittedly now residing on the first floor while the landlord is residing on the Barsati. These events happened during the pendency of the eviction case. The Additional Rent Controller was right in giving the finding that at least one bed room is needed by the aged couple on the ground floor which is not available at all in the northern portion. Hence, on that score itself the landlord could be held to be in bona fide need of the demised premises for occupation for himself and for his wife. However, in the present case overwhelming evidence has been led by the landlord which remained unrebutted which goes to show that the northern portion has been given by the landlord for use and occupation by his adopted daughter and daughter's family. After the landlord had shifted to Allahabad with his wife and had taken his whole luggage to Allahabad from the house in question, it was Shahida and her family members who remained in occupation of the house in question and after the southern portion was let out to the petitioner in 1971, it is Shahida who has been sharing the maintenance expenses of the portion in her occupation. She had been getting her luggage insured since 1969 lying in the said portion of the house. Documents Ex. AW10/39 to AW10/41 clearly depicted that it was Shahida who has been making the payments with regard to common amenities to the knowledge of the petitioner. Exs.AW3/1 to AW3/11 show that it is Shahida who has been making payments of telephone bills through her account and her husband's account. Exs.AW4/1 to AW4/6 show the reimbursement made by Shahida to the respondent regarding the expenses pertaining to the northern unit. Ex.AW10/14 letter of Shahida, Ex.AW5/1 statement of account of the landlord's bank, Ex.AW6/1 the ration card of Shahida and her family members. Ex. AW6/2 ration card of Bachan, servant of the family, Exs.AW7/1 to AW7/2 air baggage tickets showing Shahida's luggage coming from U.S.A and Exs.A1 to A5 the railway receipts showing the despatch of goods belonging to the landlord from Delhi to Allahabad and the numerous letters written by Shahida to her parents Exs.AW10/14 to AW10/26, AW10/28 to AW10/29, AW10/31, AW10/33, AW10/35-36, AW10/38 to AW10/41 amply go to show that out of love and affection for his adopted daughter, the daughter Shahida was allowed to live in the northern portion of the house independently and as a licensee without any payment. Even after Shahida and her husband and two daughters have gone abroad as Shahida's husband had taken up employment abroad, even then Shahida and her family members have been continuously and regularly coming to India and staying for 2-3 months at a time every year in the northern portion of the house. Bachan, who was earlier the servant of the landlord, came into the employment of Shahida after landlord shifted to Allahabad. This fact is also not disputed and is evident from the documents Exs.AW6/2 and AW10/14. From all these facts could it be said that the northern portion of the house is conveniently available to the landlord and his wife for their residence. It is obvious that if the landlord and his wife decide to occupy the northern portion for their residence they would not be having any comfortable living in that portion because they cannot possibly require that their beloved adopted daughter Shahida and her family members should not stay in the northern portion on their regular visits to India every year. So, the Additional Rent Controller was fully right in taking into consideration these realities of life to which the landlord is accustomed to live and also the social status of the landlord in coming to the conclusion that even though the northern portion of the house could be deemed to be available for residence by the landlord and his wife even then that portion by itself is not reasonably suitable for the bona fide need of the landlord for residence.

18. The making of the gift during the pendency of the case after leave to defend application of the tenant had been allowed loses importance but keeping in view the background of the landlord and his relationship with the adopted daughter it is not possible to hold that this transaction of oral gift is a dubious one or smacks of any mala fide on the part of the landlord. After all it is proved by the landlord that he has lot of love and affection for her adopted daughter inasmuch as when the house was constructed in the year 1966, his adopted daughter with her family members shifted to the house and resided with the landlord. When the landlord shifted to Allahabad, he allowed his adopted daughter to continue to reside in the northern portion of the house and the correspondence exchanged between the daughter and her parents reveal close affectionate mutual relationship and the mind of Shahida in treating the northern portion as her own for setting up her own independent house. The fact which has already come into existence was only given a legal shape by the landlord in making the oral gift of the said house. It is true that the landlord took hurried steps to make the oral gift of the said northern portion of the house after leave to defend application of the tenant was allowed but that would not make that transaction of gift mala fide or illegal. It also cannot be argued that the landlord has self-induced insufficiency of accommodation in order to make out any ground of eviction against the petitioner. It may be that the tenant has a right to show whether a particular transaction of transfer of property by the landlord is mala fide or sham transaction as was the case in Civil Revision No. 982/84,*Smt. Sushila Devi v. A.C Jain decided by N.N Goswamy, J. but in the present case keeping in view the facts and circumstances enumerated above, which have been clearly marshalled by the Additional Rent Controller in his elaborate judgment, leave no room for doubt that this transaction of oral gift is in any manner doubtful or not genuine. Counsel for the petitioner has made reference to Amarjit Singh v. Smt Khatoon Quamarain., AIR 1987 SC 741, in which it was observed that “if the landlady or landlord could have reasonable accommodation after his or her need arose and she by her own conduct disentitled herself to that property by letting it out for higher income, she would be entitled to evict her tenant on ground of her need.” There is no doubt about this legal proposition but in the present case there is no mala fide of the landlord in making the oral gift of the northern portion in favour of his adopted daughter for whom he and his wife have lot of love and affection. It is not a case where the landlord has any ulterior motive of getting any higher rent from any tenant by letting out any vacant portion or by evicting the petitioner and seeking to have any new tenant at a higher rent. It is a clear case of a landlord who has constructed the whole house for his own needs and after his assignment at Allahabad had terminated he has bona fide desire of living in the whole house with his wife and allow her adopted daughter to reside in the northern portion whenever she visits India. It is also not out of place to mention that it is not the case where the said daughter is not coming to India at all and has shifted to a foreign country with bag and baggage and with a view to break all links with the country of her origin.

19. Counsel for the petitioner also relied upon Kailash Chand v. Sakhir Chand, (1983) 24 DLT 202 : (AIR 1984 Delhi 177), where it was held that where the landlord is living with his mother and has set up the case that mother had required him to vacate the house, the Controller could go into the question whether notice by the mother to her own son for vacating the house is a collusive notice or not. On facts the judgment is clearly, distinguishable. There is no collusion between the respondent and the respondent's adopted daughter as far as the user of the northern portion of the building is concerned. The landlord had given that portion to his daughter even before the premises in question were let out to the petitioner. So, there was no collusion between the landlord and his adopted daughter for setting up any false need of the landlord for the demised premises. Counsel for the petitioner also cited Kishori Lal v. Sumitra Devi, (1979) 1 Rent LR 107. In the cited case the landlord gave a portion of his house to a son who was not financially dependent upon him and thus created paucity of accommodation by his own act. It was held that such a landlord cannot make a grievance of insufficiency of accommodation. In the present case the landlord had not created any insufficiency of accommodation by giving any portion to his adopted daughter after creation of tenancy with the petitioner. The facts show that the northern portion was given by the landlord to his adopted daughter even before the tenancy was created in favour of the petitioner. So the mere fact that the reality has been given a legal shape by making an oral gift by the landlord does not mean that the landlord has self-created insufficiency of accommodation with him. Counsel for the petitioner cited Inspector General of Registration and Stamps, Govt. of Hyderabad v. Smt. Tayyaba Begum, AIR 1962 Andh Pra 199 (FB). In the cited case, question which arose for decision was whether a particular document by itself is a gift deed or not and thus was required to be executed on stamp paper and got registered? It was held that a particular document itself showed that it was a gift deed so was required to be registered. In the present case, the memorandum of gift clearly show that the oral gift had taken place earlier. So, the judgment would not help the petitioner to show that this memorandum is by itself a gift deed which was required to be registered.

20. It is not out of place to mention that in view of the facts coming on the record even the petitioner on whose behalf the written arguments were filed before the Additional Rent Controller, it was construed that possession of the northern portion by the respondent's daughter is of a licensee. In Phiroze Bamanji Desai v. Chandrakant M. Patel, AIR 1974 SC 1059, it has been made clear that unless the landlord has a juridical right of possession the said portion would not be considered available to the landlord for his own residence. In the present case, clearly the luggage of the adopted daughter is lying in the northern portion which she has been getting insured since 1969 and she has been coming and residing in the said portion every year. So, it cannot be held that the landlord is juridically in possession of that portion. It was for the landlord to terminate the licence of his adopted daughter which he has not chosen to do so and no law can require a landlord to terminate the licence of his adopted daughter for the sake of keeping a tenant. So, the portion which is in possession of the adopted daughter as licensee cannot be considered available to the landlord for his own residence even though the landlord and his wife due to prevailing circumstances per force have to reside in that portion.

21. So, examined from any angle, I find that there is no illegality committed by the Additional Rent Controller in allowing the eviction petition, rather the judgment of the Additional Rent Controller is well based and does not suffer from any infirmity. In Prativa Devi (Smt) v. T.V Krishnan, (1987) 2 JT 764 (SC), it has been again reiterated by the Supreme Court that before a particular premises could be deemed to be available to the landlord for his own residence, it must be proved that the landlord had a legal right to occupy the said premises. The judgment of our High Court given in the case of Sat Pal v. Nand Kishore, ILR (1983) Delhi 73, which took contrary view was overruled.

22. Hence, I find no merit in this revision which I hereby dismiss with no order as to costs. I give one month's time to the petitioner for vacating the premises.

Petition dismissed.