Delhi District Court
Sh. Ashok Kumar Maggu vs Sh. Ganshyam Dass on 24 February, 2022
//1//
IN THE COURT OF SH. MANOJ KUMAR, ARC-1, CENTRAL DISTRICT,
TIS HAZARI COUTS, DELHI
Eviction Petition No. E-709/2014 (New No.79292/16)
Unique Case ID/CNR no. DLCT03-000552-2011
Sh. Ashok Kumar Maggu,
S/o Late Sh. Ram Maggu,
R/o House No. 2566 Sharwan Gali, Teliwara Mahavir Bazar,
Near Sadar Bazar, Delhi-110006.
...Petitioner
VERSUS
1. Sh. Ganshyam Dass,
2. Sh. Nem Chand,
Both Sons of Late Sh. Kirpa Ram Gupta,
Both at Shop No. 5393-A/3, Gupta Market,
Sadar Bazar, Delhi-110006.
...Respondents
Date of Institution of Petition : 09.08.2011
Date on judgment reserved : 23.11.2021
Date of Judgment pronounced : 24.02.2022
JUDGMENT
1. This is a petition for eviction of tenant under Section 14 (1) (e) r/w Section 25 B of the Delhi Rent Control Act, 1958.
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//2// Petitioner's case
2. The petitioner claims to be the owner and landlord of premises no.361, Mahavir Bazar, Teliwara, Sadar Bazar, Delhi, as shown in red colour in the site plan.
3. It is pleaded that, respondents are tenants in respect of one godown situated in premises no.361, Mahavir Bazar, Teliwara, Sadar Bazar, Delhi and as shown in the red colour in the site plan attached with the petition. It is further stated that the son of the petitioner is a graduate from Delhi University by getting a degree of Bachelor of commerce in the year 2009. It is further stated that he was a student of Swami Shraddhanand college Delhi. It is further stated that the son of the petitioner is not interested in the business of the petitioner and wants to start his own business of Electronic Items. It is further stated that the petitioner has no place to provide his son to start his business, so the petitioner many times requested both the respondents to vacate the tenanted premises so that his son may start his own business in the tenanted premises as stated above.
4. It is further stated that, the petitioner is the owner/ landlord of Premises No 361, Mahavir Bazar, Teliwara Sadar Bazar Delhi as the petitioner E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 2 of 15 //3// purchased the same from his relative Smt Bhagwanti Devi vide Registered sale deed dated 19.11.2004 and both the respondents are tenants under the previous owner/landlady in respect of One Godown only situated in premises No 361 Mahavir Bazar, Teliwara Sadar Bazar Delhi @ 100/- per month excluding other charges. It is further stated that, after the purchase of the property in question as stated above from the previous owner/landlady the petitioner became the owner of the same and both the respondents are tenants by operation of law under the petitioner in respect of the tenanted premises i.e. One Godown only situate in premises No 361, Mahavir Bazar, Teliwara Sadar Bazar Delhi at a monthly rent of rupees 100/- Per Month excluding other charges.
5. It is stated that the petitioner has only one residential accommodation No 2566, Sharwan Gali Teliwara Mahavir Bazar Near Sadar Bazar Delhi- 110006 in which the petitioner is residing on the Third floor with his family members. It is further stated that young graduate son of the petitioner is sitting idle due to non availability of commercial accommodation since 2009. The tenanted premises in the tenancy of the respondents is a suitable accommodation for the son of the petitioner to start his business but the respondents are not listening the real and genuine request of the petitioner E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 3 of 15 //4// and his son for vacating the tenanted premises. It is further stated that the tenanted premises requires bonafide for the petitioner and his family members dependent upon him for the purpose of the business premises. It is further stated that petitioner also requires the tenanted premises to enhance his business with the help of his son as the family of the petitioner has grown up and require more accommodation to run the business though the premises under the petitioner is not sufficient for his business as the petitioner also enhance his business with his son hence the petitioner many times requested the respondents to vacate the tenanted premises but in vain. The petitioner requires the tenanted premises bonafide and most urgently for himself and for the need of his son who is solely dependent upon the petitioner for his need of commercial accommodation to start his business.
6. It is stated that there was one another tenant named Shri Subhash Vohra who was also tenant in a small portion / shop just adjacent to the shop of the petitioner. Dr. Subhash Vohra vacated the said small portion in the year 2008 by giving vacant possession of the same to the petitioner and petitioner after getting the same removing the common wall of the said shop and merged the same in his own shop, but the requirement of the petitioner for additional commercial accommodation is not fill-up so he required the E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 4 of 15 //5// tenanted premises most bonafide and urgently as the son of the petitioner is jobless and due to non availability of commercial accommodation has not start his own business.
Respondent's case
7. Summons were served upon the respondents. The application for leave to defend filed by the respondent was allowed by the Ld. Predecessor of this Court vide order dated 25.05.2012.
8. Accordingly, the written statement was filed by the respondent no.1. In the written statement, it is stated that respondent no.1 is a tenant of the suit property and has been paying the rent at the rate of Rs.100/- per month to Smt. Bhagwanti Devi (landlady). The respondent no.2 has no concern to the suit shop in any manner. It is further stated that the petitioner is neither the owner nor the landlord of the property qua the shop under the tenancy of the respondent no. 1. Smt. Bhagwanti Devi the alleged vendor has never attorned the respondent no. 1 to the petitioner at any point of time nor there is any mention in the copy of the sale deed dated 19.11.2004 alleged to have been executed by Smt. Bhagwanti Devi in favour of the petitioner that the shop under the possession of the respondent No. 1 forms part of the said alleged E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 5 of 15 //6// property nor any fact of rate of rent or the respondent No. 2 as the joint tenant has been mentioned therein at all. It is further stated that present eviction petition and the suit C.S. NO.61/2011 I.E. the suit for the recovery of the arrears of rent, titled as "Ashok Kumar Maggu Vs. Shri Ghanshyam Dass & Ors. have been filed by the petitioner as a counterblast to the criminal complaint filed by the respondent no.1. It is further stated that petitioner had been contesting the litigation between the resondent no.1 and Smt. Bhagwanti devi in different courts at Delhi as her SPA till the year 2009 and as such the petitoner cannot be termed to be the owner of the entire building on the basis of false and fabricated sale deed dated 19.11.2004.
9. It is stated that site plan is not correct and according to the site. It is further stated that site plan has shown only two shops of the area of hardly 29 Sq. Yards in total while the alleged sale deed shows that the area of the property under sale is 35 Sq. Yards. It is further stated that till 2011, the date of filing the suit for recovery of the arrears of rent, the petitioner never disclosed to the respondent no.1 that the has purchased the said property including the tenanted shop in possession of the respondent no.1 through the alleged sale deed dated 29.11.2004 nor he ever demanded any rent of the shop during the period 2004 to 2011, nor served any notice of demand for the E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 6 of 15 //7// rent or intimated about the purchase during the said period at all. It is further stated that petition is bad for non-joinder of the previious landlady Smt. Bhagwanti Devi from whom the petitioner alleges to have purchased the property in question as Smt. Bhagwanti Devi never attonred the respondent no.1 tenant to the petitioner at any pooint of time nor the petitioner ever told the respondent no.1 till 2011 that he has purchased the property and the rent be paid to him.
10. It is stated that there is huge other accommodation in the property in question as well as in the property no.2566, Sharwan Gali, Teliwarra, Mahavir Bazar, Sadar Bazar, Delhi with the petitioner which he has failed to disclosed in the petition at all. It is further stated that petitioner is a property dealer and has purchased various other properties commercial as well as residential which he has kept with him for resale to earn handsome profits therefrom.
11. The respondent no.1 has also denied other averments of the eviction petition and prayed that eviction petition be dismissed. Petitioner's case as per Replication
12. Petitioner filed the replication wherein the averments of the eviction petition were reiterated and reaffirmed and those of the written statement E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 7 of 15 //8// were denied as false and incorrect. In particular, it is stated that there exists a relationship of landlord and tenant between the petitioner and the respondents. It is stated that petitioner is the registered owner of the property in question and the respondent no.1 is a tenant under him in respect of the tenanted premises. It is further stated that both the respondents are tenants under the petitioner in respect of the tenanted premises as the petitioner is the owner/landlady qua the respondents in respect of the tenanted premises @ Rs. 100/- P.M. excluding other charges.
13. It is stated that Smt. Bhagwanti Devi executed a Registered Will in favour of the petitioner and it was mutually agreed between Smt Bhagwanti Devi and the petitioner that after the registered sale deed that till she is alive. It is further stated that she is still became the owner of the property in question and after her death the petitioner is became the owner/landlord of the property in question. It is further stated that as the petitioner treated Smt Bhagwanti Devi like his mother accept this proposal and acted like a Attorney of the Smt Bhagwanti Devi till she alive in respect of the suit Property. Smt Bhagwanti Devi was a widow and issueless lady.
14. It is stated that in the petition there is another tenant just adjacent to shop of the deponent named Dr. Subhash Vohara, who vacated the shop in E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 8 of 15 //9// his occupation in the year 2008 by giving vacant possession of the same to the petitioner and petitioner getting the vacant possession of the said shop removing the common wall of the said shop and merged the same in his own shop, but the requirement of the petitioner for additional commercial accommodation is not fill-up so the petitioner required the tenanted premises most bonafide and most urgently as the son of the deponent is jobless and due to non availability of commercial accommodation has not start his own business.
Evidence led by the parties
15. In order to prove the case, Sh. Ashok Kumar Maggu was examined as PW-1. He tendered his evidence by way of affidavit as Ex.P1. He relied upon the documents which are exhibited as Ex.PW1/1 to PW-1/8
16. Sh. Satbir Singh, UDC office of Sub-registrar-I, Keshmeri Gate, Delhi was examined as PW2. He brought the summoned record i.e. Registered sale deed executed by Smt. Bhagwanti Devi Ex.PW2/A.
17. Sh. Ghanshyam Das Gupta was examined as RW1. He tendered his evidence by way of affidavit as Ex.RW1/A. E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 9 of 15 //10//
18. I have heard arguments and carefully gone through the record. Petitioner relied on the following decisions of the Higher Courts :
(i) "Ashwani Kumar Vs. Ataur-Rehman" 2012 2 RCR(R) 227(D).
(ii) "Devasham Vs. P. Savitharaman" AIR 2006 SC 779.
(iii) "Mritunjay Vs. Jadunath" AIR 2011 SC 2496. (iv) "Azhar Vs. Gahinder" 2012 2 RCR 97(D). (v) Daya Ram Vs. Vidya" 2012 2 RCR 269. (vi) "Sant Lal Vs. Rajinder Kumar" 189 DLT 137. (vii) Rakesh Sud Vs. Anand Kumar" 189 DLT 161 2012 AD(D) 193.
(viii) "Ramesh Chand Vs. Lalit Kumar" 190 DLT 222-2012 5 (9) AD(D) 779.
(ix) "Shafiqudin Vs. Mohd. Ibrahim" 2012 (193) DLT 788.
(x) "Partap Sain Vs.Om Perkash" 2011 RLR 588. (xi) "Radhey Shyam Vs. M.L. Prabhakar" 2000 RLR 79. (xii) "H.C. Goenka Vs. Brig. S.P. Kochar" 1999 RLR 488. (xiii) "Shshil Kanta Vs. Rajeshwar" 1999 RLR 289. (xiv) "Madhumati Kaul Vs. Harish Chand Khanna" 1997 RLR 129. (xv) "Nawal Kishore Vs. Kunti Devi" 2013 1 RLR 293. (xvi) "Ved Prakash Vs. Vimal" 2013 (2) RLR 13.
19. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the Delhi Rent Control Act, the petitioner must establish that:-
i. He is the owner and landlord in respect of the tenanted premises; ii. He requires the premises bonafide for himself to enhance his business with the help of his son &;
iii. He has no other reasonably suitable accommodation. E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 10 of 15
//11// Ownership of tenanted premises and relationship of landlord-tenant between petitioner and respondents :
20. Respondent no.1 in his written statement contended that petitioner is neither the owner nor the landlord of the property. It is further contended that Smt. Bhagwanti Devi has never attorned the respondent no.1 to the petitioner at any point of time nor there is any mention in the copy of sale deed dated
19.11.2004 that the shop under the possession of respondent no.1 forms part of the alleged property. It is further contended that petitioner had been contesting the litigation between the respondent no.1 and Smt. Bhagwanti Devi in different Courts as her special power of attorney till the year 2009. It is further contended that till 2011, the petitioner never disclosed to the respondent no.1 that he had purchased the said property including the tenanted shop though the alleged sale deed dated 29.11.2004. Though, respondent no.1 admitted that he is a tenant of the suit property and has been paying rent @ Rs.100/- per month to Smt. Bhagwanti Devi. It is further contended that respondent no.2 has no concern to the suit shop in any manner.
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//12//
21. The petitioner claimed himself to the owner of the tenanted premises and the registered sale deed dated 19.11.2004 is exhibited as Ex.PW1/1. In cross-examination of PW1, he admitted that Bhagwanti Devi filed an eviction petition under Section 14(1)(D) Delhi Rent Control Act against the respondent. He admitted that he has been appearing as a SPA of Bhagwanti Devi in the said matter. He also admitted that the eviction petition was filed in 2004 and abandoned in 2006 after Bhagwanti Devi expired on 17.03.2006. He also admitted that he never disclosed to the concerned Court that he purchased the suit property in 2004 and this fact was disclosed to the respondents only after the death of Bhagwanti Devi. He also admitted that respondent never paid any rent to him. He also admitted that no notice for attornment was given.
22. PW2 also proved the sale deed dated 19.11.2004 which is exhibited as Ex.PW2/A(OSR). Respondent filed the certified copy of the judgment passed in suit no.109/2011 titled as "Ashok Kumar Maggu Vs. Ghanshyam Dass & Nem Chand". Though, the judgment not got exhibited in the evidence of the petitioner, but being certified copy of judicial record, same can be read in evidence. Perusal of the judgment shows that an issue was framed in the said suit i.e. whether the plaintiff is owner/landlord in respect of premises no.361, E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 12 of 15 //13// Mahavir Bazar, Teriwada, Sadar Bazar, Delhi. The Ld. Court of Sh. Ankit Singla, Ld. Civil Judge categorically held that petitioner is not the owner of the property. Thereafter, the respondents challenged the said judgment before the Ld. Appellate Court. The Ld. Counsel of Sh. Harish Kumar, Ld. ADJ vide judgment dated 08.03.2017 dismissed the appeal of the respondents thereby upheld the judgment of the Civil Judge. The Ld. Appellate Court held that possibility cannot be ruled out that sale deed might have been executed without the knowledge and consent of Bhagwanti Devi. The Ld. Civil Judge in his judgment observed that "para no.2 of page no.7 of sale deed contradicts the arguments of Ld. Counsel for the plaintiff that Smt. Bhagwanti Devi had sold the entire suit premises to the plaintiff as it shows that plaintiff was sold only that portion which was already in his possession as tenant at the time of sale. By no stretch of imagination, this sale deed can be read as transferring the ownership rights in favour of the plaintiff qua the portion in which he was not in possession as a tenant."
23. It was further observed that previous owner Bhagwanti Devi was contesting the eviction petition with respect to suit property even in 2006. No explanation is given by the plaintiff as to why Smt. Bhagwanti Devi continued to contest the eviction petition against the defendant no.1 qua the suit E No. 709/14 (New No.79292/16) Ashok Kumar Maggu Vs. Ghanshyam Dass & Ors. Page 13 of 15 //14// property even when she had already sold the same to him. Further, no explanation was given by the plaintiff as to why he did not move any application for his impleadment for eviction petition filed by Smt. Bhagwanti Devi against the defendant qua the suit property." It is further observed that "plaintiff failed to prove that he ever requested the defendants to pay the arrears of rent or vacate the premises prior to 2011."
24. Thus, Ld. Civil Judge held that petitioner is not the owner of the demised property. The said suit was between the same parties pertaining to the same property. Specific issue was framed regarding ownership of property which was duly decided against the petitioner. Thus, the decision of the Ld. Civil Judge which was later on upheld by the Ld. Appellate Court binding on the parties. It is a settled principle of law that an issue which has been heard and finally decided by a competent Court cannot be re-agitated again. The law of res-judicata as contained in Section 11 of Code of Civil Procedure applies to such a case.
25. Thus, in view of the above stated decisions, I am satisfied that petitioner cannot claim himself to be the owner of the demised property. Issue has been heard and adjudicated upon.
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//15//
26. Thus, in view of the above discussion, it is clear that petitioner is not the owner of the demised property. There is no document in the form of rent receipts etc. which shows that respondents ever paid rent to the petitioner. PW1 rather admitted in his evidence that respondent never paid any rent to him. PW1 also admitted that no notice of attornment was given. Thus, it is apparent that there exists no relationship of landlord and tenant between the parties. So, once it is held that petitioner is neither the owner nor landlord of the property, so he cannot seek eviction of tenant on his bonafide requirement. So, I am of the considered view there is no point in discussing the other ingredients of Section 14(1)(e) of Delhi Rent Control Act. So, the petition under Section 14(1)(e) r/w Section 25-B of Delhi Rent Control Act is dismissed.
Digitally
signed by
MANOJ
MANOJ KUMAR
KUMAR (MANOJ KUMAR)
Date:
2022.02.24
ARC-I, Central District,
16:17:44
+0530
Tis Hazari Courts, Delhi.
(Announced in open court
on 24th of February, 2022)
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