Delhi District Court
Hazari Courts vs Sh. Mohd. Yakub on 13 January, 2011
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IN THE COURT OF SH. PRITAM SINGH, ARC (CENTAL) TIS
HAZARI COURTS, DELHI
E159/07
11.01.2011
Nawal Kishore.
S/o Late Sh. Trilok Chand.
R/o 18/3747A, 1st Floor, Rehgar Pura,
Karol Bagh, New Delhi110005
... Petitioner
Versus.
Sh. Mohd. Yakub
S/o Mohd. Usam.
Shop No. 374344, Gali No. 19,
Regharpura, Karol Bagh,
New Delhi110005 ... Respondent
Petition U/s 14 (1) (a) (j) and (b) of Delhi Rent Control Act
1. Date of institution of the case : 19.02.1994
2. Date of Judgment Reserved : 07.01.2011
3. Date of Judgment pronounced : 13.01.2011
JUDGMENT
1. The brief facts as stated in the petition are that one shop bearing no. 374344, Gali No. 19, Rehgarpura, Karol Bagh, New Delhi, was let out to the respondent on the basis of rent agreement dated 15.12.78. It is further stated that the petitioner is owner/landlord of the shop in question. 2
2. It is further stated that the respondent has not paid the arrears of rent w.e.f 01.07.93 onwards at the rate of Rs. 60/ per month inspite of repeated requests and demands. Respondent has neither tendered nor paid the legally recoverable rent within two months of the date of receipt of the notice of demand dated 04.11.93 served on respondent in the manner as provided U/s 106 of the Transfer of Property Act.
3. It is further submitted that respondent has caused and permitted to have caused substantial damage to the suit shop by making additions, alterations and it is a result of the said additions and alterations that the foundations of the said property has weakened. Property in question is four storeyed building and respondent has illegally and wrongfully constructed basement without consent of petitioner/owner/landlord and the M.C.D and has dug the floor to the extend of more than 8' X 10' and while constructing the basement, respondent has damaged the entire construction existing on said building as a result whereof several cracks have appeared in the building and foundation of said building is weak and it would not bear the extra burden of the basement which has been illegally constructed and because of said basement, there is every likelihood that the building may fall down.
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4. It is further stated that the respondent has removed the Pillars which were in existence in said building, and has also removed the Almirah, KolkiAlla and has also made illegal alterations in the other portions of the tenanted premises. Respondent has also constructed the dochhatti in the said shop. The respondent while constructing the dochhatti in the said shop, has caused holes in the property.
5. It is further submitted that the respondent has constructed a tin shed in the front of the shop measuring 13' X 14' without consent of the petitioner/owner/landlord and also from the M.C.D and disfigured the said shop. The petitioner has also approached the respondent to bring the tenanted shop condition to its original condition in which it was let out to him, but the respondent neither cared to bring the condition of the shop to its original position and condition nor he has carried out the repairs to avoid the demolition by the M.C.D or to avoid collapse of the property in question. Notice was served on respondent but inspite of receipt of the notice, no steps were taken by respondent to bring the tenanted shop to its original condition and position.
6. It is further submitted that respondent has illegally dismentled the Kolki in the said tenanted premises and after demolishing the same, the 4 portion of the said Kolki was illegally and wrongfully and without the knowledge and consent of the petitioner, sublet, assigned or otherwise parted with possession thereof to Sh. Shahabuddin, who is a tenant in respect of the adjoining shop No. 3745, Gali No. 18, Rehgarpura, Karol Bagh, New Delhi, and the said Sh. Shahabuddin is in unauthorised use and occupation of the possession of the said Kolki. Sh. Shahabuddin, who thus merged the said Kolki in his tenanted premises. The respondent has also not obtained such permission from the previous owners Smt Prabhati Devi and Sh. Puran Chand.
7. It is further stated that the respondent has illegally sublet, assigned and parted with possession of the suit shop to his son Mohd. Shahid without the consent in writing of the petitioner, who is carrying on business of meat in suit shop and the over all control over the shop is of his son who has been carrying on business in the said shop for the last about two years and the respondent has sublet, assigned and otherwise parted with possession of the suit shop about two years back to his son without the consent in writing of the petitioner/owner/landlord and petitioner never accepted his said son to be his tenant in the suit shop and the said son being an unauthorised occupant.
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8. In the written statement respondent submitted that there is no relationship of landlord and tenant between the petitioner and the respondent. The respondent never attorned to the petitioner and never paid any rent to the petitioner. The petitioner is not the owner of the property in dispute. The respondent was the tenant of Smt. Prabhati Devi widow of Sh. Trilok Chand and Sh. Pooran Chand S/o Sh. Trilok Chand. The aforesaid persons never transferred the property in favour of the petitioner. Sh. Nawal Kishore, petitioner, has therefore no locus standi to file the present petition for eviction against the respondent.
9. It is denied that the respondent has illegally sublet, assigned or otherwise parted with possession of the shop in question to his son Sh. Mohd. Sahid. The respondent is in possession of the premises in dispute legally as well as physically and the sons of the respondent also work with the respondent. The respondent has four sons namely Mohd. Haroon, Mohd. Sahid, Mohd. Naseen and Mohd. Shamin. All the sons are living with the respondent. The family, besides running a meat shop in the premises in dispute, is also running a meat shop at Pitampura. The respondent is carrying on business at the premises in dispute and one of the sons of the respondent out of the four assists the respondent in carrying on the business.
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10. It is further submitted that respondent is a tenant only in respect to one shop. At one time the Kolki marked Z was also in the tenancy of the respondent. However, the said Kolki was surrendered by the respondent to his landlords Smt. Prabhati Devi and Sh. Puran Chand in 1987. The said Kolki was not under the tenancy of the respondent on the date when the petition for eviction was originally filed by the petitioner. The said Kolki is not in the tenancy of the respondent.
11. It is denied that the respondent has caused and permitted to be caused substantial damage to the suit shop by making additions, alterations or as a result of the said additions and alterations, foundation of the said property has weakened. It is denied that the property in question is four storeyed building. It is denied that the respondent has illegally and wrongfully constructed basement without the consent of the petitioner, owner/landlord and the Municipal Corporation of Delhi and has dug the floor to the extent of more than 8' X 10'. It is stated by the respondent that in 1987 a settlement took place between the respondent and the said Smt. Prabhati Devi and Sh. Puran Chand whereby the respondent surrendered his Kolki to them and they included the said Kolki in the adjoining shop. The building was double storeyed at that time. The said Smt. Prabhati Devi and Sh. Puran Chand allowed the respondent to make additions and alterations in 7 consideration of the respondent surrendering the tenancy and for allowing them to raise unauthorised construction in the first floor, second floor and third floor and fourth floor. Thereafter, with their consent, the respondent constructed the basement after providing very strong foundation to bear the load of four storeys which the said landlords wanted to construct. The respondent after carrying out additions and alterations made the building strong enough to bear the load of four storeys to be constructed by the landlords over the shop of the respondent. It is submitted that the said landlords, after the shop was completed, reconstructed the first floor and raised construction of the second floor, third floor and fourth floor. The building became five storeyed only after the additions or alterations were made by the respondent in the shop in dispute. The alleged tin shed is in existence since long on the Municipal land. The petitioner has no right to raise any objection to the same. The petitioner was not the landlord in 1987 and there was no occasion for the respondent to seek any permission from the petitioner. Even if it is proved by the petitioner that he has become the owner of the property, he is bound by the commitments of the aforesaid landlords Smt Prabhati Devi and Sh. Puran Chand.
12. It is further stated that the petitioner has intentionally and deliberately not mentioned anywhere in the petition as to when the alleged additions and 8 alterations were made. The petitioner is living in the same building. Smt. Prabhati Devi is also living in the same building. Sh. Puran Chand is also living in a nearby building. The petitioner or the aforesaid landlords never raised any objection at any time, although, the additions and alterations were made in 1987.
13. It is further stated that respondent paid rent to Smt. Prabhati Devi and Puran Chand upto 30.06.93. The petitioner sent a legal notice dated 04.11.93 stating that he is owner and landlord as per family settlement. It is further stated that respondent sought copy of settlement from the previous owners and also from the petitioner but they failed to give any copy of family settlement to the respondent. It is further stated that respondent did not attorn the petitioner as his landlord and deposited the rent in the court of Sh. P.C. Ranga, the then Ld. Additional Rent Controller, Delhi, on 22.12.93. It is further stated by the respondent that in the said rent deposit petition, Smt. Prabhati Devi and Sh. Puran Chand were impleaded as respondent alongwith the present petitioner. The respondent has deposited the rent within two months of the notice dated 04.11.93 in the court in the said rent deposit petition and therefore, even, if it is proved by the petitioner that he has become the owner of the property in dispute and is entitled to recover rent w.e.f 01.07.93, the ground of non payment of rent is not available to the 9 petitioner.
14. Replication to the WS of the respondent filed by the petitioner. It is stated in the replication that the respondent was tenant under Smt. Prabhati Devi and Pooran Chand, in respect of the shop in dispute and in terms of the family settlement dated 12.04.1989, the said premises fell to the share of the petitioner, who became the owner/landlord of the said premises and intimation thereof was given by the previous owner to the respondent on 03.01.1994 to accept the present petitioner as owner/landlord of the said premises. It is further stated that Smt. Prabhati Devi and Puran Chand also informed the respondent vide letter dated 03.01.94, regarding the atornment of the tenancy in favour of the present petitioner. The rent deposited by the respondent u/ 27 of DRC Act is illegal and invalid because the respondent was under obligation to pay rent to the petitioner which he failed to do so inspite of notice of demand. All other averments made in the WS were denied by the petitioner and the contents of the petition were reaffirmed and reiterated.
15. It is important to mention here that during the pendency of petition the petitioner has filed an application u/o 6 rule 17 CPC to amend the petition. It is stated in the application that inadvertently, the petitioner had 10 not taken the specific plea that the respondent after removal of the kolki, from the tenanted premises, without the permission and consent of the petitioner had illegally parted with the possession of the said Kolki in the adjoining shop No. 3745, Gali No. 18 Rehgarpura, Karol Bagh, New Delhi and the said shop is in the tenancy of Sh. Shahbuddin. The application u/o 6 rule 17 CPC filed by the petitioner was allowed vide order dated 23.07.2001. The abovesaid amendment has already been stated above while discussing the brief facts of the present petition.
16. Thereafter, in order to prove his case, the petitioner has examined himself as AW1, One Sh. Sat Prakash Singh, Chadha, Draftman was examined as AW2, Sh. Anil Kumar Gupta, Architect was examined as AW3 and his affidavit for evidence exhibited AW3/A, One Sh. Misri Lal was examined as AW4 and his affidavit for evidence exhibited as AW4/A.
17. The family settlement dated 12.04.89 exhibited AW1/A, The site plan exhibited AW1/2, mutation of the property in the name of petitioner w.e.f 01.04.89 in the House Tax record exhibited AW1/3 and AW1/4, the rent agreement dated 15.12.78 exhibited AW1/5, the copy of legal notice dated 04.11.93 exhibited AW1/6, postal receipt exhibited AW1/7, AD card exhibited AW1/8, a reply to the legal notice exhibited AW1/9, 11 the survey report exhibited AW1/10 and AW1/11, the lease deed of the suit property in favour of Smt. Prabhati Devi and Puran Chand exhibited AW1/12, the certified copy of relinquishment deed of Smt. Prabhati Devi in favour of Puran Chand exhibited AW1/13, the letter of atornment dated 03.01.94 issued by Smt. Prabhati Devi and Puran Chand to the respondent exhibited AW1/14, the postal receipt exhibited AW1/15, AD card exhibited AW1/16, the reply of the respondent dated 25.01.94 exhibited AW1/17, the carbon copy of notice sent to Zonal Engineer Builiding, MCD, Karol Bagh Zone exhibited AW1/18 its postal receipt and UPC exhibited AW1/19 adn AW1/20 respectively, the certified copy of plaint of suit filed by the respondent against the petitioner in 1980 exhibited AW1/21, WS of that plaint exhibited AW1/22, replication exhibited AW1/23, the certified copy of judgment in that suit exhibited AW1/24, the statement of respondent as PW1 is exhibited AW1/25, certified copy of site plan filed in said injunction suit exhibited AW1/26, the certified copy of decree sheet in that suit exhibited AW1/27, the certificate regarding tenanted premises not situated in slum area is exhibited AW1/28, the death certificate of the grand father of petitioner is exhibited AW1/29, the certified copy of order dated 08.03.96 passed by Sh. P.C.Ranga, the then Ld. ARC u/s 27 of DRC Act exhibited AW1/30.
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18. The site plan exhibited AW2/1, the report of Architecture exhibited AW3/1. Some documents were put up by the respondent in the cross examination of AW1 and the same are exhibited as follows :
19. A certified copy of petition u/s 44 of DRC Act filed by the respondent against the petitioner is exhibited AW1/R1, certified copy of WS and replication filed in the said petition u/s 44 of DRC Act exhibited AW1/R2 and AW1/R3 respectively. Copy of notice served upon Smt. Prabhati Devi and Puran Chand before filing of the said petition exhibited AW1/R4, the reply of said notice sent by Sh. C.P.Vig, advocate exhibited AW1/R5, site plan filed in said petition exhibited AW1/R6 and order of compromise in said petition exhibited as AW1/R7. The site plan of the suit property existed in 1982 exhibited AW1/R8, the certified copy of order of dismissal of suit filed by Smt. Prabhati Devi and Puran Chand against the respondent exhibited AW1/R9 and copy of decree sheet exhibited AW1/R10. An application u/s 340 Cr.P.C filed by the respondent in the appeal before the Ld. Addition Rent Control Tribunal Ex. AW1/R11, the certified copy of reply filed by petitioner to said application Ex. AW1/R12, affidavit of petitioner in support of said reply Ex. AW1/R13, copy of notice issued to the petitioner to produce the counter foils of rent receipt Ex. AW1/R14, reply to said notice Ex. AW1/R15, rent receipt dated 05.12.93 in favour of 13 Shahbuddin Ex. AW1/R16.
20. On the other hand the respondent has examined himself as RW1 and his affidavit for evidence exhibited R1. One Sh. B.P. Singh, Architect was examined as RW2 and his affidavit of evidence exhibited RW2/A. Sh. Mohd. Shahid son of the respondent was examined as RW3 and his affidavit of evidence exhibited R2. The report of Architecture RW2 exhibited RW2/A.
21. Arguments heard from both the Ld. Counsel and gone through the entire record carefully.
22. Ld. Counsel for petitioner relied upon the following rulings :
(i) Kale and others Vs. Dy. Director of Consolidation and others, AIR 1976 Supreme Court 807.
(ii) Hari Shankar Singhania & others Vs. Gaur Hari Singhania & others, 2006 (88) DRJ 1 (SC) .
(iii) Sunila Wadhawan & others Vs. Silver Smith India Ltd, 2010 (116) DRJ 497.
(iv) Rajender Kumar Sharma & others Vs. Leela Wati & others, 155 (2008) Delhi Law Times 383.
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(v) Ramesh Chand Vs. Uganti Devi, 157 (2009) Delhi Law Times 450.
(vi) E.Parashuraman (deceased by L.Rs.) Vs. V.Doraiswamy (deceased by L.Rs), AIR 2006 Supreme Court 376.
(vii) Rita Lal Vs. Raj Kumar Singh, AIR 2002 Supreme Court 3341.
(viii) Mohinder Prasad Vs. Manohar Lal Jain, AIR 2006 Supreme Court 1471.
(ix) Madhulika Srivastava & another Vs. Union of India & others, 166 (2010) Delhi Law Times 210 (DB).
(x) Pearey Lal & another Vs. Surender Nath & others, 162 (2009) Delhi Law Times 412.
(xi) M/s Bennett Coleman and Co. Ltd. Vs. Sh. Prem Chand Jain and others, 1979 (1) RCR 548.
(xii) Shankarappa Vs. Puttamma, 1987 (2) RCR, 611.
(xiii) Dr. N.R.Rao and another Vs. M/s Premier Auto Electric Pvt. Ltd., AIR, 1980 Madras 51 Full Bench.
(xiv) Sushil Puri Vs. Jai Gopal, 2007. Rajdhani Law Reporter 141.
(xv) Mange Ram (Deceased) through LRS & others Vs. Chhuttan Lal (Deceased) through LRS., 81 (1999) Delhi Law Times 589.
23. Ld. Counsel for the respondent relied upon the following rulings :
(i) Kale & others Vs. Dy. Director of Consolidation & others, (1976) 3 15 SCR 202.
(ii) Mahajan Dwarka Prasad Vs. SubRegistrar, Narsinghpur, AIR 1970 Madhya Pradesh 33.
(iii) 1. Siromani (In CA No. 749 of 1965), 2. Siromani and another (in CA No. 750 of 1965) Vs. 1. Hemkumar and others (in CA no. 749 of 1965), 2. Dinmani (in CA No. 750 of 1965), AIR 1965 Supreme Court 1299 (V 55 C 249).
(iv) Balkrishna Bihari Lal Vs. Board of Revenue M.P and others AIR 1970 Madhya Pradesh 74 (V 57 C18), Full Bench.
(v) Smt. Hemanta Kumar Patnaik and others Vs. Suryanarayan Acharya and others, AIR 1992 Orissa 1.
(vi) Mangal Prasad Vs. Vth Additional District Judge, Basti and others, AIR 1992 Allahabad 235.
(vii) The Chief Controlling Revenue Authority (Stamp Act) and Inspector General of Registration, Madras Vs. Gunapala Nainar and others, AIR 1989 Madra 268 Full Bench.
(viii) Sh. Purshotam Dass and another Vs. Smt. Shakuntla Devi and others, 1995 AIH C 2672.
(ix) Robert Fernandes and others Vs. Louis Fernandes and others, 1995 A.I.H.C. 805.
(x) D.Agastin and another Vs. Devasagayan and another, AIR 1999 16 Madras 341.
(xi) Avinash Kumar Chauhan Vs. Vijay Krishna Mishra, I (2009) CLT 157 (SC).
24. Ld. Counsel for the respondent vehemently argued that the petitioner is neither landlord nor owner of the suit property, therefore, the present petition is not maintainable and liable to be dismissed. Ld. Counsel further submitted that petitioner claiming to be owner of suit shop by virtue of family settlement dated 12.04.89 but the said family settlement was never registered, therefore inadmissible in evidence. Ld. Counsel further submitted that Smt. Pratibha Devi & Puran Chand were the owner of suit shop and it was not the ancestral property of petitioner, therefore, petitioner cannot become owner of suit shop by virtue of family settlement Ex. AW1/1. On the other hand petitioner, who argued himself, submitted that he became owner of the suit shop under the family settlement Ex. AW1/1. The tenanted shop fell to his share.
25. It is well settled law that under DRC Act for a landlord it is not necessary to prove absolute ownership over the suit property. The landlord has to show that he is more than a tenant. In the case in hand it is not in dispute that respondent is tenant in the suit shop. The suit shop was let out 17 to respondent by Smt. Prabhati Devi and Sh. Puran Chand. Smt. Prabhati Devi is mother of petitioner & Sh. Puran Chand is brother of petitioner. The previous owner/landlord neither claiming ownership nor claiming rent from the respondent. On the other hand they had sent a notice of attornment dated 03.01.94 to the respondent that petitioner has become owner & landlord of the suit premises. Respondent claiming that the family settlement was never provided to him and further contending that petitioner cannot become owner/landlord by virtue of family settlement as the same is unregistered one and it is inadmissible in evidence.
26. These contentions of the respondent are without merits. The respondent never stated that the previous owners ever claimed rent from him since 01.07.93 or ever claimed themselve as owner of suit property. It is not in dispute that petitioner is son & brother of previous owners. The previous owners have sent a notice dated 03.01.94 to the respondent intimating him that petitioner has become owner & landlord of suit shop and he should pay rent to the petitioner.
27. I am of the considered view that it is sufficient for previous landlords to inform the respondent that the petitioner has become owner/landlord of suit shop and rent should be paid to petitioner. It is not for the 18 tenant/respondent to challenge the authority of owner/landlord how he/they can transfer their right/interest in favour of third person/petitioner. It is well settled that tenant cannot challenge the title of landlord. The position would be different, if the previous owner claiming that they are still owner/landlord and claimed rent from the respondent.
28. It is very important to mention here that in the year 1980, the respondent, herein, filed a suit for permanent injunction against some defendants in respect of suit shop in question. The petitioner herein was defendant no. 3 in that suit for permanent injunction and respondent herein admitted that he is a tenant under the defendants including present petitioner. Therefore, now the stand of respondent that petitioner is not landlord has no substance and he is estopped by his own admission. It was held in Rajender Kumar Sharma Vs. Leelawati (supra) that landlord is not supposed to prove absolute ownership as required of under Transfer of Property Act, he is required to show only that he is more than tenant. It was held in Ramesh Chander Vs. Uganti Devi (supra) that imperfectness of title of premises cannot stand in way of eviction petition. Neither tenant can be allowed to raise plea of imperfect title or title not vesting in landlord and that too when tenant paying rent to the landlord.
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29. In view of the above discussions I am of the considered view that the petitioner is landlord in respect of tenanted shop in question and respondent is tenant under him.
Ground u/s 14 (1) (a) of DRC Act.
30. It is not in dispute that the petitioner had sent a legal demand notice dated 04.11.93 Ex. AW1/6 to the respondent demanding arrear of rent from 01.07.93 to 31.10.93. Respondent had sent a reply Ex. AW1/9 to the said notice not admitting the petitioner as landlord. It is also not in dispute that thereafter a notice dated 03.01.94 Ex. AW1/14 was sent to the respondent by the previous owner intimating the respondent that petitioner became owner/landlord of the shop in question under a family settlement.
31. It is case of the petitioner that the previous landlord intimated the respondent that petitioner had become the landlord of the suit shop in question first time vide letter dated 03.01.94. Before that there was no intimation to the respondent by the previous owner that the petitioner had become landlord of the suit shop in question. Even the petitioner had not sent any notice of attornment before notice dated 04.11.93 that he become the landlord. On the other hand the previous owner continued to accept the rent from the respondent upto 30.06.93 despite the fact that family 20 settlement took place in the year 1989 and the suit shop came to the share of the petitioner. The petitioner, AW1, has admitted that the respondent had deposited the arrears of rent claimed in the notice dated 04.11.93 Ex. AW1/6, in the court of Sh. P.C. Ranga, then Ld. ARC, Delhi, on 22.12.93. From these facts it is proved that there was uncertainity for the respondent to whom the rent should be paid and his action to deposit the rent in the court on 22.12.93 was bonafide. Thus the respondent had deposited the rent in the court demanded in the legal notice dated 04.11.93 within two months from the service of legal notice. However, the respondent had deposited only the rent in the court without interest though there was delay in making the payment of rent. Only after receiving the legal notice dated 04.11.93 from the petitioner, the respondent deposited the rent in the court. The question arise, if the respondent not accepting the petitioner as his landlord then why he not paid the rent to the previous owner. If the previous landlord refused to take the rent then why did he (respondent) not send the rent by money order to the previous owner. The respondent deposited the rent in the court after getting legal demand notice Ex. AW1/6. The respondent had to tendered the rent to the landlord or deposited the same in the court alongwith interest on rent within two months after the service of legal notice Ex. AW1/6 as there was delay in making the payment of rent. It was held in two judgments of the Hon'ble 21 High Court of Delhi reported in 128 (2006) Delhi Law Times 299 and 126 (2006) Delhi Law Times 6, to claim that even if it is assumed that the rent was tendered within two months, the same without interest, is not complete compliance of the legal demand notice. It has specifically held in said judgments that interest on the delayed payment of rent constitute a component of the rent legally recoverable for the purpose of section 14 (1)
(a) of DRC Act and if interest on the arrears is not paid or tendered, there is no compliance of the legal demand notice.
32. Hence it is proved that the respondent failed to pay or tendered the complete rent despite service of legal demand notice Ex. AW1/6. The grounds u/s 14 (1) (a) are fulfilled.
Grounds u/s 14 (1) (b) of DRC Act.
33. AW1 deposed "The respondent is not doing the business. He has given the business to his son Mohd. Shahid, who is running the business for the last 8 years and it is Mohd. Shahid who is opening & closing the shop & is in control of it". AW1 deposed in his cross examination that the respondent has four sons and the respondent has a meat shop at Pritampura also besides the meat shop in the premises in dispute. AW1 further deposed that he does not know, if the respondent and his four sons are residing 22 together and has a common mess.
34. AW4 deposed that " the respondent has sublet, assigned or parted with the possession in respect of the shop to his son Mohd. Shahid, who is in possession of the said shop and carrying on the meat shop therein from the last more than 15/16 yrs. and the said Mohd. Shahid open the shop in the morning and close the same in the evening as he conduct the business and overall control over the shop is with Mohd. Shahid and the respondent is not carrying on any business in the said shop". AW4 deposed in his cross examination that the respondent has sublet his shop to his son. At present there is no tenant in the shop in possession of the respondent. AW4 voluntarily deposed that only Yakub sits in the shop.
35. The deposition of AW1 & AW4 do not prove that the respondent has sublet, assigned or parted with the possession of tenanted shop. The main allegation is that respondent is not doing business and his son doing the business and in control of shop. From these averments sub tenancy is not proved. It was held by Hon'ble Supreme Court in Deepak Banerjee Vs. Smt. Lilabati Chakraborty AIR, 1987 SC 2055 that one of the essential ingredients of sub tenancy is right to occupy the premises must be in lieu of payment of some compensation or rent. It was held in Benjamin Permanand 23 Rawade by LRs Vs. Anil Joseph Rawade, 1998 (9) SCC 688 that to prove the sub tenancy two essential conditions are to be satisfied :
(i) That sub tenant was in exclusive possession of property or part of the property.
(ii) That between the sub tenant and the chief tenant there was relationship of lessee and lesser.
36. It was held in Sohan Lal Vs. Sri pal and others, 48 (1992) DLT 65 that the possession does not mean the physical possession only but it should be legal possession also. The mere user by other person is not parting with possession so long as the tenant retaining the legal possession himself. So long as the tenant keeps the control with him than it cannot be said that sub tenant is exclusive possession and hence it does not fall within the mischief of clause (b) to section 14 (1) of DRC Act.
37. Petitioner failed to prove that son of the respondent is in exclusive possession of the tenanted shop and there is no evidence that the respondent has given possession to his son in lieu of payment of some compensation or rent. There is also nothing to prove that the respondent has given the legal possession of the suit shop to his son. In view of above discussions I am of 24 the considered view that petitioner failed to prove the grounds of sub letting u/s 14 (1) (b) of DRC Act.
Ground u/s 14 (1) (j) of DRC Act
38. It is well settled law that the landlord who wants an eviction under this section has to establish that (i) the tenant had made the construction;
(ii) the construction was without consent of the landlord; and (iii) the said construction has materially effected premises and further the construction which had been carried out by the tenant as aforesaid, did materially alter the premises. So far the construction is concerned it is not denied by the respondent that addition & alteration were done in the tenanted shop and basement was also constructed by the respondent. However, defence of the respondent is that he got the consent of previous owner Prabhati Devi and Puan Chand in 1987 and as per settlement, the respondent constructed basement and did other addition/alteration and he allowed the previous owners to construct first, second, third floor and fourth floor in the suit property. Now, the petitioner has to establish that the said construction was done by the respondent without the consent of previous owner/landlord.
39. AW1 deposed that "respondent has made addition, alteration and structural changes in the shop. The respondent has constructed basement 25 which has been shown in green colour in the plan Ex. AW2/1 as marked E,F,G & H. The basement was made without my consent and knowledge. The respondent also not took any permission from corporation and from any other competent authority for the purpose of construction of basement in the said property. The respondent has also constructed a Dochhatti, the respondent has opened a new gate with rolling shutter towards gate no. 19, he has also constructed a thada in front of the shop and put a tin shed in front of door. He has also extended the shop by 8 inches by putting pillar. The respondent has also removed four brick pillars, one almirah, one aala, due to this additions and alteration the building had developed cracks on all the top floors i.e on the first, second and other floors. The building has been in danger due to the digging of the basement. All this was done during our absence when we were away at Rajasthan on account of death of my grand father. I had gone on 18.10.93 with my family and returned on 01.11.93". AW1 further deposed that "A kolki had also been in the tenancy when the premises were originally let out. The kolki was part of the respondent tenancy from the very beginning. The kolki at point Z is Ex. AW2/1. This kolki had been demolished by the respondent and the said portion has been sublet and handed over by the respondent to Shahbuddin who is in possession of the adjacent shops and the respondent has done so without our consent. The said portion is still with Shahbuddin and he uses it". 26
40. AW1 deposed in his cross examination "I have never seen any plan (old) of the construction existing in the property which I am claiming to be owned by me. I had read the contents of ExAW1/21 at the time when the suit was filed, as I was defendant no. 3 in that suit. The respondent was the tenant of Smt. Prabhati Devi and Puran Chand when the suit ExAW1/21 was filed. I had even at that time the share in the property as it was my ancestral property. When the suit, ExAW1/21, was filed the property in dispute was double storey. We have not demolished any portion of the property in dispute but at the time of filing of the suit Ex.AW1/21 we have demolished the portion of the adjoining property. We had filed written statement in that suit, the certified copy of the same Ex.AW1/22. We had got recorded in the written statement Ex.AW1/22 that there was no demolition in the property no. 374344 and that the demolition was done in the property no. 3747. At this stage the witnesses is confronted with WS Ex.AW1/22 and called upon to specify where the portion where demolition of adjoining property. I have read the WS it is not recorded anywhere in the said WS ExAW1/22. It is correct that in the said WS we had admitted that the defendants had demolished some portions of property no 374344, Regharpura, Karol bagh, New Delhi. I admit now that the portion of property no. 374344 was demolished (some portion). The said portion was in possession of Sh. Puran Chand when it was demolished". 27
41. AW1 further deposed in his cross examination that "kolki underneath the stairs leading from ground floor to the first floor. The height of said kolki was about two and a half feet and three feet. The staircase leading from ground floor to first floor was supported by three walls of the said kolki. Previous landlord has demolished the said stair case in January, 1980. Volunteered, however, the kolki remained at its own place, even after the demolition of staircase. The space vacated on demolition of stairscase was included in the tenancy of tenant who was the previous tenant in the shop, now occupied by Shahbuddin. The kolki was demolished by respondent in October, 1993". AW1 further deposed "I did not serve any notice at any time to Shahbuddin complaining that he had included the space of kolki in his shop. I did not take any action against Shahbuddin. AW1 further deposed it is correct that there was no almirah shops towards gali no. 19 in the wall of Mohd. Yakub when Mohd. Yakub was inducted as a tenant. It is correct, now there are two almirah shops. It is wrong to suggest that these shops was built by Smt. Prabhati Devi and Puran Chand in 1987. Volunteered these shops was built by me in October, 1992. I am not in possession of any documentary proof to show that these shops were constructed by me in October, 1992. It is correct that these two shops was constructed in the wall mark AD in the plan exhibited AW2/1 which is the 28 wall of the shop under tenancy of Mohd. Yakub. The said shops were constructed by me with the consent of Mohd. Yakub. I came to know on 01.11.93 that respondent had given possession of kolki to Shahbuddin. I had been recovering rent from Shahbuddin without any objection even after 01.11.93".
42. After considering the depositions of AW1, I found many contradictions in it and it is difficult to believe his depositions. The petitioner no where stated in the legal demand notice Ex. AW1/6 when the basement and other construction was constructed by the respondent. The petitioner has also not stated the date, month or year of construction of basement in the petition, whereas it was stated in the legal notice Ex. AW1/6 that the respondent did not take the permission from the petitioner nor from the previous owner before the alleged construction in the shop in question. The question arises if the respondent had constructed basement in October, 1993 then why did he require to take permission from the previous owner as they were not landlord of the suit shop as per petitioner himself. The question further arise, if the respondent had constructed basement in the year 1993 then why did petitioner not mention this fact in the legal notice Ex. AW1/6. Not only this, the petitioner not mentioned the time of construction in the petition also. Petitioner first time 29 deposed in his evidence on 10.12.98 that basement was constructed in October, 1993. From this it is clear that it is an after thought of petitioner to give month & year of alleged construction first time in his evidence in the court. Not only this to save himself he deposed that in October, 1993 he was not in Delhi/in the suit premises and he had gone to his village on 18.10.93 on the occasion of death anniversary of his grand father and returned on 01.11.93. The petitioner had not made any complaint to the Police or any other authority after coming to Delhi in November, 1993. This again casts shadow on the veracity of deposition of AW1 that the respondent constructed the basement in October, 1993.
43. It is not in dispute that the premise was two/double storey upto the year 1986 and later on construction of second, third and fourth floor was done. The petitioner no where deposed when the second, third and fourth floor were constructed. The petitioner deposed that permission of previous owner was not taken but he did not examine the previous owner to prove this fact particularly when the previous owner continued to take the rent from the respondent till 30.06.93 despite the fact that the tenanted shop fell to the share of the petitioner on 12.04.1989. The petitioner even did not mention the name of previous owner in the list of witnesses, who were his mother & brother. It is important to mention here that the previous owner 30 took the rent from the respondent till June, 1993 and they sent the letter dated 03.01.94 of attornment to the respondent. Hence it is clear that Smt. Prabhati Devi and Puran Chand were dealing with the respondent regarding the tenanted shop till June, 1993, therefore the question that respondent had not taken permission from the petitioner, does not arise.
44. It is also important to mention here that the previous owners and petitioner were living in the same building in which suit shop is situated. If the respondent had constructed basement and other alteration it was well with the knowledge of them, but they did not make any complaint to the Police or other authority. A basement cannot be constructed within two or three days it requires at least a week. If the previous owner had not given their consent then why did they not make any complaint to concerned authority. From all this it is proved that the respondent had done the construction with the consent of previous owner and the petitioner failed to prove that the respondent constructed basement and other addition or alteration without the consent of former owner/landlord. The further allegation of the petitioner that the kolki was demolished by the respondent in October,1993 and after its demolition it was sublet to Shahbuddin, a tenant in the adjacent shop, has no substance because the petitioner failed to prove that the respondent made a addition or alteration in the tenanted shop 31 without the consent of previous owner. The rulings relied upon by the Ld. Counsel of the petitioner have no bearing to the facts of the present case.
45. In view of the above discussion the petitioner failed to prove the ingredients of section 14 (1) (b) and 14 (1) (j) of DRC Act. However, the petitioner established the ingredients of section 14 (1) (a) of DRC Act. Hence, the present petition of the petitioner is disposed of accordingly.
(Announced in the open court
on 13.01.11) (Pritam Singh)
ARC/Central/Delhi