Delhi District Court
Smt. Lalita Rani vs Shri R.K. Gandhi (Deceased Through Lrs) on 30 August, 2012
IN THE COURT OF MS. SUGANDHA AGGARWAL, ADDL. RENT CONTROLLER: NORTHWEST:ROHINI: DELHI E.No.1262/2006 [U/s 14(1)(a), (b), (d) & (h) of DRC Act, 1958] Unique Case Identification No. 02404C0333632006 Smt. Lalita Rani, Daughter of Late Shri Hem Raj Malhotra, Wife of Shri Raj Kumar, R/o 195B/3, Vasant Lane, Railway Colony, Pahar Ganj, New Delhi - 110055. ... Petitioner Versus Shri R.K. Gandhi (deceased through LRs) (i) Smt. Kiran Gandhi Wife of Late Sh. R.K. Gandhi (2) Shri Rupal Gandhi Son of Late Sh. R.K. Gandhi (3) Shri Mohit Gandhi, Son of Late Sh. R.K. Gandhi All R/o 2030, Second Floor, Rani Bagh, Delhi. Also at Gandhi Photostat, 3406B, Mahindra Park, Rani Bagh, Delhi. Also at 3388, Mahindra Park, Rani Bagh, Shakurbasti, Delhi110034. ... Respondent Date of Institution: 10.11.2006 Date of Arguments : 16.08.2012. Date of Decision: 30.08.2012. E.No.1262/2006 Page No. 1 of 34 JUDGMENT:
1. The present petition has been filed by the petitioner seeking eviction of the respondent on grounds as envisaged under Section 14(1)(a), (b), (d) & (h) of Delhi Rent Control Act, 1958. The petitioner has averred in the petition that premises No.3388, Mahendra Park, Rani Bagh, Shakurbasti, Delhi - 110034 (hereinafter to be referred as suit premises) were let out to the respondent at the rate of Rs.800/ per month and Rs.100/ per month towards electricity and water charges.
2. It is averred that the respondent is a habitual defulter in the payment of rent. Respondent has not paid rent since 1.3.2002 till the filing of the present petition. A composite legal demand notice dated 17.7.2006 thereby demanding arrears of rent and termination of tenancy was sent by registered post. The same was replied by the respondent vide reply dated 2.8.2006 but despite service of notice, neither respondent has paid the rent nor the respondent has vacated the suit premises. Therefore, it is contended that the respondent is liable to be evicted under Section 14(1)(a) of Delhi Rent Control Act, 1958.
3. It is further contended that the suit premises were let out for E.No.1262/2006 Page No. 2 of 34 residential purpose to be used by the respondent himself only. Since the last week of November, 2004, the respondent alongwith his family members had shifted to another premises bearing No. 2030, Second Floor, Rani Bagh, Delhi. Since then none from the respondent's family are residing in the suit premises. Respondent has parted with the possession of suit premises and has further sublet the same to Murari Lal Malhotra. It is contended in the petition that the possession of suit premises have been handed over by the respondent to Murari Lal Malhotra without prior consent and knowledge of petitioner. The petitioner came to know about the said fact only on 02.08.2006 when the petitioner received the reply to his demand notice.
4. It is further contended that the respondent is also liable to be evicted as per the provisions of Section 14(1)(d) and (h) of Delhi Rent Control Act, 1958. It is averred that the respondent is not residing in the suit premises since November, 2004 i.e. for last more than six months and respondent has acquired and also residing in another house bearing No. 2030, Second Floor, Rani Bagh, Delhi and therefore the respondent is liable to be evicted for not using the suit premises for more than six E.No.1262/2006 Page No. 3 of 34 months and for acquiring alternate accommodation. The petitioner has further averred that the suit premises were originally let out to respondent by her mother Late Smt. Mohini Devi. Late Smt. Mohini Devi was the owner of suit premises and had purchased the same vide registered sale deed. Late Smt. Mohini Devi executed a Will dated 3.12.1993 in favor of petitioner vide which the suit premises were bequeathed in favor of petitioner. The said Will was duly registered in the office of Sub Registrar. Since 3.12.1993, the petitioner started managing the affairs of the suit premises. All other legal heirs of Late Smt. Mohini Devi admitted and accepted the validity of Will dated 3.12.1993 and jointly executed a Deed of Declaration in favor of petitioner except Murari Lal Malhotra and Ram Gopal. It is further contended that the respondent is paying rent of suit premises to petitioner and respondent has already admitted the petitioner as the landlady of suit premises. Prior to filing of present eviction petition, one more eviction petition was filed by petitioner under Section 14(1)(a) and (g) of Delhi Rent Control Act which was withdrawn by the petitioner with liberty to file fresh petition on same cause of action. It is averred that Sh.Murari Lal Malhotra is intimidating E.No.1262/2006 Page No. 4 of 34 the petitioner from the very beginning and has no ownership rights over of the suit premises and in view of above stated grounds, the present petition has been filed by the petitioner seeking eviction of the respondent.
5. Written statement has been filed by the respondent thereby denying all the averments of the petition. Firstly, it is denied that the respondent is tenant of suit premises. It is contended that Smt. Kiran Gandhi, wife of the respondent is the tenant under Sh. Murari Lal Malhotra and not under the petitioner. Respondent has further stated in his written statement that even during the lifetime of Smt. Mohini Devi, Sh. Murari Lal Malhotra was collecting the rent and issuing rent receipts to Smt.Kiran Gandhi. There is no relationship between the petitioner and the respondent of landlord and tenant since the very inception of tenancy. From the very beginning, wife of respondent was the tenant and Sh. Murari Lal Malhotra was initially looking after the property under the supervision of Smt. Mohini Devi who was the original allottee and after her death, Sh. Murari Lal Malhotra has became the landlord of the suit premises. Earlier petition was withdrawn by the petitioner because E.No.1262/2006 Page No. 5 of 34 petitioner was unable to produce any document showing her ownership of suit premises. Respondent has also denied the genuineness of the Will on the basis of which the petitioner has claimed ownership of suit premises. It is also stated that even in reply to legal notice served by the petitioner, respondent has stated that his wife is the tenant of suit premises under the tenancy of Sh. Murari Lal Malhotra. It has been further contended that respondent is not in arrears of rent as the entire rent has been paid to Sh. Murari Lal Malhotra. Respondent in his written statement has stated that he is no more residing in the suit premises as he has already handed over the vacant and peaceful possession to Sh. Murari Lal Malhotra who is the landlord of suit premises. Now respondent alongwith his family is residing at 2030, Second Floor, Rani Bagh, Delhi. All other averments of the petition are specifically denied by the respondent.
6. Replication has been filed on behalf of the petitioner thereby denying all the averments made in the written statement and reiterating the contents of petition.
7. After completion of pleadings, parties led their evidence. Petitioner examined herself as PW1. She filed affidavit Ex.AW1/A in her E.No.1262/2006 Page No. 6 of 34 examinationinchief wherein she has reiterated and reaffirmed the contents of petition on oath. She has relied upon the following documents: i. Extracts of Newspaper as Ex.AW1/1 ii. Certified copy of sale deed dated 9.8.1965 as Ex.AW1/2. iii.Certified copy of Will dated 3.12.1993 as Ex.AW1/3. iv.Certified copy of GPA dated 3.12.1993 as Ex.AW1/4. v. Affidavit dated 3.12.1993 as Ex.AW1/5.
vi.Deed of Agreement dated 3.12.1993 as Ex.AW1/6.
vii.Receipt dated 3.12.1993 as Ex.AW1/7.
viii.Deed of declaration dated 29.1.1998 as Ex.AW1/8 ix.Site plan of suit premises as Ex.AW1/9 x. Legal notice dated 17.7.2006 and AD Card as Ex.AW1/10 and Ex.AW1/11.
xi.Reply dated 2.8.2006 as Ex.AW1/12.
8. PW1 was crossexamined at length. During crossexamination, PW1 has deposed that during the lifetime of Smt. Mohini Devi, rent was being paid by the respondent to Smt.Mohini Devi. PW1 has categorically E.No.1262/2006 Page No. 7 of 34 denied the suggestion put to her that respondent's wife was inducted as tenant in the suit premises and Sh.Murari Lal Malhotra has been collecting rent of suit premises during the lifetime of Smt. Mohini Devi. She has specifically denied that after the death of Smt. Mohini Devi, Sh. Murari Lal Malhotra has become the landlord of suit premises.
9. AW2 Ashok Kumar is the brother of petitioner. He has deposed that the suit premises were purchased by their mother vide sale deed dated 09.08.1965. In 1988, the suit premises were let out to the respondent at a monthly rent of Rs.800/ and Rs.100/ on account of electricity and water charges. The respondent and his family started residing in the suit premises. The respondent was making payment of rent to Smt.Mohini Devi and at times to petitioner. He has further deposed that during the lifetime of Smt.Mohini Devi, the behaviour of Sh. Murari Lal Malhotra and Sh.Ram Gopal were not good and therefore they had strained relations with their mother Smt.Mohini Devi. He has further deposed that the ownership of suit premises was transferred in favor of the petitioner by Smt.Mohini Devi vide documents dated 3.12.1993. Thereafter respondent was paying rent to petitioner. He has further deposed that E.No.1262/2006 Page No. 8 of 34 since 1.3.2002, respondent has not paid rent of suit premises and suit premises are lying locked since November, 2004. Respondent and his family members have shifted to their newly acquired House bearing No. 2030, Second Floor, Rani Bagh, Delhi. AW2 Ashok Kumar has identified the certified copies of Will and GPA dated 3.12.1993 as Ex.AW2/R. AW2 was crossexamined at length and discharged.
10. AW3 Sh. Naresh Kumar Parashar, UDC from the office of Sub RegistrarI, Kashmere Gate, Delhi has brought the office copy of Deed of Declaration dated 29.1.1988, GPA dated 3.12.1993 and Will dated 3.12.1993. AW3 was crossexamined and discharged.
11. AW4 Sh.Pradeep Kumar Sharma, Assistant Zonal Inspector from Property Tax Department of MCD has deposed that as per record of MCD, the suit premises have been mutated in favor of the petitioner. He has further deposed that property tax upto 31.3.2004 has been paid by Smt.Mohini Devi. AW4 was also crossexamined on behalf of respondent and discharged.
Thereafter Petitioner's evidence was closed.
12. Respondent examined himself as RW1. He filed his affidavit E.No.1262/2006 Page No. 9 of 34 Ex.RW1/A towards his examinationinchief wherein he has reiterated and reaffirmed the contents of written statement on oath. RW1 was cross examined at length on behalf of the petitioner and discharged.
13. RW2 Smt.Kiran Gandhi is the wife of respondent. She has deposed that she was inducted as tenant under Smt.Mohini Devi in the year 1990 with respect to suit premises at the rate of Rs.400/ per month. It is further deposed that RW2 used to give rent to Sh.Murari Lal Malhotra who was the son of landlady Smt.Mohini Devi during her lifetime. In 1993 when RW2 applied for ration card, "No Objection Certificate" with respect to the same was issued to her by Sh.Murari Lal Malhotra. It is further deposed that RW2 alongwith her family have now shifted to House No. 2030, Second Floor, Rani Bagh, Delhi and have handed over the possession of tenanted premises to Sh.Murari Lal Malhotra. RW2 was crossexamined at length by the petitioner and discharged.
14. RW3 Sh.Murari Lal Malhotra has deposed that he is the son of landlady Smt.Mohini Devi who has already expired. He has further deposed that petitioner has filed frivolous litigation at the instance of her E.No.1262/2006 Page No. 10 of 34 husband. Being the eldest son, he was managing the complete affairs relating to properties of Smt.Mohini Devi during her lifetime and was collecting rent with respect to suit premises from Smt. Kiran Gandhi. After the death of Smt.Mohini Devi, Smt. Kiran Gandhi has paid rent from time to time and their are no arrears of rent to be paid. NOC was also issued by him in favor of Smt.Kiran Gandhi for issuance of ration card. It is further deposed that Smt. Kiran Gandhi remained in the tenanted premises till 20.5.2006 and thereafter handed over the vacant possession of suit premises to RW3. RW3 was crossexamined at length by the petitioner and discharged.
Thereafter, respondent's evidence was closed.
15. I have heard the arguments advanced by learned counsels for both the parties and have perused the record.
16. Oral arguments were addressed on behalf of the petitioner and written arguments have been filed by the respondent.
17. Counsel for the petitioner has argued that the property has been devolved upon the petitioner by way of registered Will dated 3.12.1993. As per the provisions of Section 116 of Evidence Act, respondent is E.No.1262/2006 Page No. 11 of 34 estopped from challenging the validity of Will in eviction petition under Delhi Rent Control Act. Respondent has admitted the ownership of Smt.Mohini Devi with respect to suit premises. Petitioner has derived her title for the suit premises from Smt.Mohini Devi. Therefore, the petitioner is the owner of suit premises. Respondent has sublet the premises to Murari Lal and it is admitted fact that today Murari Lal is in the possession of the suit premises. Further it is contended that petitioner has made specific averments with respect to subletting and to the effect that respondent is not residing at the suit premises for last more than six months and has also acquired alternate accommodation but in the written statement, there is no specific denial to the said submission of petitioner. It is further argued that the respondent has not shown any document to show as to from which period the tenancy has started and further to show that Murari Lal is the owner of suit premises. It is argued that as per the version of the respondent, Smt.Mohini Devi died in 1997 and the Will was executed in favor of the petitioner on 3.12.1993. It is admitted by the respondent that for four years, Smt.Mohini Devi did not raise any objection regarding the execution of Will in favor of petitioner. Even E.No.1262/2006 Page No. 12 of 34 Mr.Murari Lal in his evidence in the Court has admitted that he has not challenged the Will executed in favor of the petitioner. Mr. Murari Lal is neither the landlord nor the owner of suit premises and payment of rent to a third person is no payment in the eyes of law and therefore the respondent is in arrears of rent and is liable to be evicted under Section 14(1)(a) of Delhi Rent Control Act, 1958. It is further contended by counsel for petitioner that the earlier eviction petition filed by the petitioner was withdrawn with liberty to file fresh petition due to some legal defect and during pendency of said petition, the respondent being aware that petitioner is claiming ownership over the suit premises has handed over the possession of suit premises to Murari Lal. It is stated that Murari Lal has no locusstandi to receive the possession and admittedly he is in possession of suit premises, therefore, respondent is liable to be evicted from the suit premises on the ground of subletting. It is stated that all other contents of petition are deemed to be admitted by the respondent as they are not specifically denied and therefore, the petitioner is entitled to an order of eviction under Section 14(1)(d) and (h) of Delhi Rent Control Act, 1958.
E.No.1262/2006 Page No. 13 of 34
18. Percontra, Learned counsel for respondent has argued that respondent is not a tenant in the suit premises. The suit premises were let out to the respondent's wife by Smt.Mohini Devi. It is further contended that Mr. Murari Lal Malhotra was looking after the suit premises from very beginning and he only was collecting the rent. After the death of Smt.Mohini Devi, Mr. Murari Lal Malhotra has become the owner of suit premises and rent was regularly being paid till 2006 to Mr. Murari Lal Malhotra. In 2006, respondent's wife has handed over the possession of suit premises to Mr. Murari Lal Malhotra. Ld. Counsel for respondent has referred to certain portions of crossexamination of PW1 to state that it is clear from the crossexamination itself that the petitioner is not the landlady of the suit premises. It is further contended that admittedly as per the crossexamination of PW1, petitioner despite knowing that respondent is paying rent to Mr. Murari Lal Malhotra has not served any notice to the respondent not to pay rent to Mr. Murari Lal Malhotra. It is further contended that the testimony of PW2 cannot be considered as in his testimony he has deposed that he is not a Kashmiri migrant but respondent has produced all the record from concerned Department which E.No.1262/2006 Page No. 14 of 34 shows that PW2 is a Kashmiri migrant and is also receiving his pension as Kashmiri migrant. It is further contended that to obtain ration card, NOC was issued by Mr. Murari Lal Malhotra in favor of respondent's wife which shows that Mr. Murari Lal Malhotra is the landlord of suit premises and therefore, respondent has rightly handed over the possession of suit premises to Mr. Murari Lal Malhotra. As per arguments of the respondent, petitioner has not duly proved her case and therefore she is not entitled to an order of eviction.
19. I have considered the rival contentions of both the parties and have carefully scrutinized the record.
20. In the present eviction petition, petitioner has sought eviction of the respondent on the grounds as envisaged under Section 14(1)(a), (b),
(d) and (h) of Delhi Rent Control Act, 1958. However, the respondent has challenged the ownership of the petitioner and therefore, it is imperative to first decide the relationship of landlord and tenant between the petitioner and respondent before giving any findings on the grounds of eviction.
E.No.1262/2006 Page No. 15 of 34 RELATIONSHIP OF LANDLORD AND TENANT
21. In the present petition, the petitioner has averred that originally the suit premises was owned by Smt.Mohini Devi by way of registered sale deed Ex.AW1/2 executed on 09.08.1965. Thereafter, Smt.Mohini Devi transferred the suit premises in favor of petitioner by way of documents such as General Power of Attorney, Agreement to Sell, Will etc. Further the suit premises were bequeathed in favor of petitioner by Smt.Mohini Devi by registered Will dated 3.12.1993 which is Ex.AW1/3 and GPA is Ex.AW1/4. Petitioner has further contended that all her brothers and sisters except two brothers gave a Deed of Declaration dated 29.1.1998 Ex.AW1/8 in favor of petitioner thereby accepting her as the owner of suit premises. Respondent has admitted the fact that Smt.Mohini Devi was owner of suit premises. Therefore, the same need not be ascertained by this Court. However, respondent has challenged the ownership of the petitioner with regard to suit premises. Respondent has contended that another son of Smt.Mohini Devi i.e. Shri Murari Lal Malhotra is the owner and landlord of suit premises. Respondent has E.No.1262/2006 Page No. 16 of 34 contended that Sh.Murari Lal Malhotra has been taking the rent from respondent's wife from the very beginning and respondent has already handed over the vacant possession of suit premises to Sh.Murari Lal Malhotra in the year 2006.
22. In order to prove its case, petitioner has examined herself as AW1 wherein she has reiterated and reaffirmed the contents of her petition on oath. Petitioner has been crossexamined at length. During crossexamination, petitioner has admitted that she came to know in the year 2004 that respondent is paying rent to Mr.Murari Lal Malhotra and despite the said knowledge, she did not serve any notice on the respondent calling upon him not to pay rent to Sh. Murari Lal Malhotra. Further during crossexamination, petitioner has deposed that even during the lifetime of Smt.Mohini Devi, she was receiving the rent of suit premises from the respondent. She has denied the suggestion put to her that during the lifetime of Smt. Mohini Devi wife of respondent was paying rent to Sh. Murari Lal Malhotra. Petitioner has been cross examined at length but petitioner maintained her stand. To corroborate her testimony, petitioner has examined her brother Ashok Kumar as E.No.1262/2006 Page No. 17 of 34 AW2. AW2 has deposed on oath that Will Ex.AW1/3 was executed in favor of petitioner by Smt.Mohini Devi out of her own will. By virtue of the said Will, petitioner has become owner of suit premises and Deed of Declaration Ex.AW1/8 has already been executed in favor of petitioner. PW2 identified signatures of Smt.Mohini Devi on Will Ex.AW1/3. PW3 has also deposed in his examinationinchief that Sh.Murari Lal Malhotra and Ram Gopal had strained their relations with Smt. Mohini Devi during her lifetime and were living separately. During crossexamination, AW2 Ashok Kumar has categorically denied the suggestion that he is a Kashmiri migrant. He has specifically stated in his crossexamination that respondent has paid the rent to Smt. Mohini Devi in his presence in the year 1989, 1997, 1998 and 1999. Further AW2 Ashok Kumar has maintained his stand during crossexamination. Other witness examined by the petitioner are formal in nature who have brought the original record and have identified the documents as true and correct placed on record by the petitioner.
23. In order to prove his case, respondent has examined himself as RW1 wherein he has stated that Sh. Murari Lal Malhotra is the owner of E.No.1262/2006 Page No. 18 of 34 suit premises. His testimony has been corroborated by the testimony of his wife who has been examined as RW2. Both RW1 and RW2 have stated that RW2 was the tenant under Sh. Murari Lal Malhotra and they have handed over the possession of suit premises to Sh. Murari Lal Malhotra in the year 2006. During crossexamination, RW1 has admitted that he does not have any rent receipt to show that Sh. Murari Lal Malhotra was the landlord and rent was being paid to him. During cross examination, RW1 has admitted that they have shifted to other house situated at 2030, Second Floor, Rani Bagh, Delhi in the year 2004. The another witness examined by the respondent to prove his stand is Sh. Murari Lal Malhotra. Sh. Murari Lal Malhotra in his examinationinchief has stated that during the lifetime of Smt.Mohini Devi also, he was looking after the affairs of suit premises and was also collecting rent from respondent's wife. After death of Smt.Mohini Devi, he became the owner. Petitioner married against the wishes of family and therefore her relations were strained with the family. During crossexamination, RW3 had shown his inability to show that whether there was any correction made in his affidavit filed in his examinationinchief or not. He had further stated E.No.1262/2006 Page No. 19 of 34 that the tenanted premises were let out through property dealer but has been unable to tell the details of said property dealer. During cross examination, RW3 has stated that he became the owner of suit premises by virtue of Will dated 28.11.1997 but he has been unable to tell the names of witnesses of said will or the person who drafted the said Will. He was even unable to produce the copy of said Will in the Court. During crossexamination, RW3 stated that upon the death of Smt.Mohini Devi, he did not even inform MCD or other Departments that by virtue of said Will, he had become owner of said property and neither he has paid the arrears of house tax. During crossexamination, Mr. Murari Lal Malhotra has admitted that he was the eldest son and being head of family, he issued the NOC in favor of respondent's wife for issuance of ration card.
24. In the present petition, petitioner has claimed ownership on the basis of a Will. Ld. Counsel for respondent has argued that the testimony of the petitioner does not inspire confidence. Firstly, there is no rent agreement executed between the respondent and Smt.Mohini Devi with regard to suit premises. However, respondent has admitted Smt.Mohini Devi as the landlady of suit premises and that has not been disputed by E.No.1262/2006 Page No. 20 of 34 the parties. Thereafter, learned counsel has argued that despite being aware in the year 2004 that rent is being paid by respondent's wife to Sh.Murari Lal Malhotra, petitioner has not served any notice to the respondent not to give rent to Sh.Murari Lal Malhotra. The said plea of the counsel for respondent is not tenable as admittedly at that time another eviction petition was already pending which was filed by the petitioner against the respondent for the suit premises. In fact, respondent despite being aware that petitioner is claiming herself to be the owner of suit premises chose to give rent to Sh.Murari Lal Malhotra instead of depositing the same in the Court in case there was some interse dispute regarding the ownership of suit premises.
25. Furthermore, it is settled law that in an eviction petition under Delhi Rent Control Act, what is required to be proved by the landlord is that his status is more than a tenant. In eviction petition, Court does not have to decide over the title of party and if a Will has been produced by the landlord, as per the provisions of Section 116 of Evidence Act, tenant is estopped from challenging the genuineness of the same. E.No.1262/2006 Page No. 21 of 34
In the case of Sh. A.K. Nayar v. Sh. Mahesh Prasad, 153 (2008) DLT 423, the Hon'ble Delhi High Court held that: "Landlord is not required to show his absolute ownership over the property. The ownership under the DRC Act is not absolute ownership. Plea raised by the tenant regarding ownership was a bogus plea and raised just to deprive the landlord of his property."
26. In the present case, the registered Will dated 3.12.1997 Ex.AW1/3 has been placed on record by the petitioner. Signatures of Smt. Mohini Devi on the same have been duly identified by AW2 also. AW2 has corroborated the stand of the petitioner. GPA Ex.AW1/4 has also been placed on record by the petitioner but contrary to this, no document has been placed on record by the respondent to show that Mr.Murari Lal Malhotra is the owner of suit premises. Mr.Murari Lal Malhotra has been examined as RW3 by the respondent. Despite that also, no document has been furnished. RW3 in his testimony has said that he is claiming ownership over the suit premises on the basis of Will dated 28.11.1997. Neither the said Will nor its copy has been produced in the Court. It is not even stated as to why the said Will is not being produced in the Court. During crossexamination, RW3 has specifically stated that he does not even remember the names of witnesses on the said Will. Further RW3 is E.No.1262/2006 Page No. 22 of 34 silent about the fact as to why he did not challenge the Will Ex.AW1/3 in favor of the petitioner, if he had a valid Will in his favor and if he was owner of suit premises. There are only photocopy of two rent receipts which have been filed by the respondent, that too for the period of 2004. There is no document during the lifetime of Smt.Mohini Devi filed by the respondent to show that Mr.Murari Lal Malhotra was collecting rent on behalf of Smt. Mohini Devi during her lifetime. On the other hand, petitioner has examined AW2 Ashok Kumar who is an independent witness and has deposed that Mr.Murari Lal Malhotra had strained his relations with his mother Smt.Mohini Devi during her lifetime. Counsel for respondent has argued that testimony of AW2 does not inspire confidence as he has not deposed true facts before the Court which has been stated by counsel for respondent that respondent had called the record from concerned Department to show that AW2 Ashok Kumar is a Kashmir migrant. However, there is no such record in the judicial file and AW2 in his testimony has categorically denied that he is a Kashmiri migrant.
27. Counsel for respondent has argued that petitioner has admitted E.No.1262/2006 Page No. 23 of 34 in her crossexamination that a NOC was issued by Mr.Murari Lal Malhotra for issuance of ration card to respondent's wife. To this, RW3 in his crossexamination has himself stated that being the eldest member of the family, he had issued the NOC. Therefore, even if at one point of time, all the brothers and sisters were staying together and a NOC was issued by Mr.Murari Lal Malhotra, the said fact merely will not make him the owner of suit premises.
28. Therefore, in view of above discussion, it is clear that petitioner has placed on record documents showing her ownership over the suit premises and petitioner is the landlord by virtue of Will Ex.AW1/3 and GPA Ex.AW1/4. Now once it has been established that petitioner is the owner of suit premises, the grounds of eviction shall be dealt with separately.
(A) Petition u/s 14(1)(a) of DRC Act
29. It is contended by the petitioner that last rate of rent was Rs.1750/ per month and Rs.300/ on account of electricity and water charges which is not paid by the respondent since March, 2002. The legal notice dated 17.7.2006 was also sent to the respondent which was replied E.No.1262/2006 Page No. 24 of 34 vide reply dated 2.8.2006 but no rent has been paid. In his written statement, respondent has not made specific denial to the said averment of the petitioner. It is only reiterated again and again that rent is being paid to Mr.Murari Lal Malhotra and therefore, the respondent is not in arrears of rent. Petitioner has examined herself as AW1 and has reiterated and reaffirmed the said fact in her examinationinchief. However, AW1 has not been crossexamined on the said point. Neither she has been cross examined on the point of rate of rent nor she has been crossexamined as to whether the respondent is in arrears of rent or not. Hence the said contention of the petitioner has gone unrebutted and unchallenged by the respondent. RW1 has been given a suggestion in his crossexamination by counsel for petitioner in which he has stated that it is wrong to suggest that rent is not due with effect from 1.3.2002 calculated @ Rs.1750/ per month towards rent and Rs.300/ per month on account of electricity and water charges thereby admitting that the contention of petitioner is correct. Hence petitioner has proved by preponderance of probabilities that the respondent has not paid the rent since 1.3.2002 and is liable to be evicted as per provisions of Section 14(1)(a) of Delhi Rent Control Act, E.No.1262/2006 Page No. 25 of 34 1958.
(B) Petition u/s 14(1)(b) of DRC Act
30. Secondly, petitioner has argued that the suit premises have been sublet by the respondent to Mr. Murari Lal Malhotra. It is an admitted case that at present respondent is not in possession of suit premises. Respondent has handed over the possession of suit premises to Mr.Murari Lal Malhotra. In the crossexamination, RW1 has specifically stated that he has handed over the possession of suit premises to Mr.Murari Lal Malhotra. The said fact is not denied by the respondent. It is settled law that for proving subletting, it is sufficient to prove that the tenant has parted with possession. Once that is established, then the onus is on the tenant that the third person is not in possession as a subtenant.
In the case of Lakhvinder Singh v. Vijay Shamsher Singh 2011(2) RLR (Pb. & Hry.) B. 402, it has been held that : "If the landlord establishes parting of possession in favour of third party, the onus is shifted to the tenant to prove in what capacity is his party's possession."
In the case of Lakhi Ram Dass Vs. M/s. Vidyut Cable and Rubber Industry Bombay, 1970 RCJ 40 it is held that: E.No.1262/2006 Page No. 26 of 34 "If the landlord establishes that a third person is in possession of the part of the presumption arising from that it was for the tenant to establish that notwithstanding the grant of exclusive possession the legal possession continued with the tenant. Once it is admitted that there is third person in the premises, then it is for the tenant to explain their presence."
In the case of M/s Bharat Sales Ltd. Vs. Life Insurance Corporation of India AIR 1998 SC 1240, it has been held as under : "To prove subletting production of affirmative evidence showing payment of monetary consideration by the subtenant to the tenant is not necessary. Inference as to subletting can be drawn from proof of delivery of exclusive possession of the premises by the tenant to subtenant. Subtenancy or subletting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the dismissed property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals of the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the subtenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sublet had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub lease. It may be paid in case or in kind or may have been paid or E.No.1262/2006 Page No. 27 of 34 promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sublet or it may have been paid or promised to be paid periodically. Since payment of rent at monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sublet."
In the case of T.P Pall v. S. Harisimran Singh, 2012(1) RLR (Del.) C.223, it has been observed that : "The law of subletting as contained under Section 14 (1) (b) of the DRCA places only an initial burden upon the landlord to make out a case of the exclusive possession of the suit premises with the sub tenantOnus then shifts upon the tenant to prove that it is not a case of subletting."
31. In the present case also, respondent has failed to discharge this onus. As per respondent's version possession of suit premises was handed over to Murari Lal Malhotra as he was the owner. But as already discussed, respondent has failed to prove the same. Respondent has not proved as to under what capacity Murari Lal Malhotra is in possession of suit premises, therefore, a presumption can be drawn in favor of the petitioner.
32. Further the eviction petition cannot be dismissed on the ground that Mr. Murari Lal Malhotra is not joined as a party as it is settled law E.No.1262/2006 Page No. 28 of 34 that subtenant is proper party and not necessary party to the eviction petition as held by Hon'ble Delhi High Court in the case of S. Rajdev Singh Vs. Punchip Associates Pvt. Ltd. AIR 2008 Delhi 56.
33. From the above discussion in the present case, as it is an admitted case that Mr. Murari Lal Malhotra is in the possession of suit premises. Hence the respondent is liable for eviction from the suit premises as per provisions of Section 14(1)(b) of Delhi Rent Control Act, 1958.
(C) Petition u/s 14(1)(d) of DRC Act
34. In order to prove that the tenant is liable for eviction under Section 14(1)(d) of Delhi Rent Control Act, 1958, the landlord has to prove that tenant is not residing in the suit premises for last more than six months. It is an admitted case of the parties that respondent is not residing in the suit premises since 2004. In fact in his crossexamination, RW2 Smt. Kiran Gandhi has specifically stated that she has shifted in her flat in 2004. The present petition has been filed in 2006. It is clear that on the date of filing of present petition, respondent was not residing in the suit E.No.1262/2006 Page No. 29 of 34 premises for last more than six months. Hence respondent is liable to be evicted in accordance with Section 14(1)(d) of Delhi Rent Control Act, 1958.
(D) Petition u/s 14(1)(h) of DRC Act
35. In order to prove that the tenant is liable for eviction under Section 14(1)(h) of Delhi Rent Control Act, 1958, the landlord has to prove that tenant has acquired an alternate accommodation. It is an admitted case of the parties that respondent is occupying alternate accommodation at House No. 2030, Second Floor, Rani Bagh, Delhi. It is clear that on the date of filing of present petition, respondent has acquired the aforesaid alternative accommodation. Hence respondent is liable to be evicted in accordance with Section 14(1)(h) of Delhi Rent Control Act, 1958.
RELIEF
36. In view of aforesaid discussion, the petition for eviction for grounds under Section 14(1)(a), (b), (d) & (h) of Delhi Rent Control Act, 1958 is allowed.
E.No.1262/2006 Page No. 30 of 34
37. However, as per the provisions of of Delhi Rent Control Act, 1958, in case a tenant is evicted for nonpayment of rent under Section 14(1)(a) of of Delhi Rent Control Act, 1958, he has to be given a chance for payment of arrears of rent so as to enable him to avail the benefit under Section 14(2) of Delhi Rent Control Act, 1958. As per the case of the petitioner, the rent has not been paid since March, 2002 and legal demand notice is dated 17.7.2006. It is settled law that even for the purpose of Section 14(1)(a) of Delhi Rent Control Act, 1958, a landlord can claim only legally recoverable rent and rent which is barred by limitation cannot be claimed by the landlord. Reference in this regard may be made to the cases of Kamala Bakshi Vs. Khairati Lal 2000 (1) RCR (Rent) 400 (SC), Hari Shanker Saxena Vs. Sarla Devi & Ors. 1970 RCR 36, Satyendra Kumar Vs. Ramchandra Murthy 1975 RCR 320, Mankunwar Bai Vs. Sunderlal Jain 1978 (1) RCJ 249, Daulat Ram Vs. Som Nath 1981 (1) RCJ 220 (Delhi) wherein it has been observed as under : "The expression 'legally recoverable' means rent for the recovery of which there is no legal bar. One such bar may be the expiry of the period of limitation, as the expiry of the period of limitation E.No.1262/2006 Page No. 31 of 34 prescribed by law bars the recovery of the said amount. Therefore, it has to be held that the words 'arrears of rent legally recoverable' means arrears of rent which are not barred by limitation."
38. Therefore, in the present case also, the respondent is liable to pay the legally recoverable arrears of rent i.e. three years immediately preceding from the date of legal demand notice dated 17.7.2006 and arrears of rent prior to that period are barred by limitation.
39. Hence as per the provisions of Section 15(1) of DRC Act, respondent is directed to pay arrears of rent with effect from 1.8.2003 @ Rs.1750/ per month towards rent and Rs.300/ towards electricity and water charges within a period of one month from today.
40. Before parting with this judgment, it is observed that the findings in the above judgment with respect to title of the petitioner for the suit premises is only to the extent of her being landlady of suit premises. The same shall not tantamount to any expression on the interse rights of the petitioner and her brother Mr. Murari Lal Malhotra or any other brother or sister with respect to title of suit premises.
41. The main file be consigned to record room and Ahlmad is directed to prepare a separate miscellaneous file for the purpose of E.No.1262/2006 Page No. 32 of 34 consideration of benefit under section 14(2) of DRC Act. Put up on 29.09.2012. A copy of this judgment be kept in the separate miscellaneous file.
( SUGANDHA AGGARWAL) Addl. Rent Controller (NW) Rohini, Delhi Announced in the open Court on this 30th day of August, 2012 E.No.1262/2006 Page No. 33 of 34 E. No. 1262/2006 30.8.2012 Present: Petitioner in person.
Mr. Rupal Gandhi, son of Respondent.
Vide separate judgment passed and announced in the open court today, the petition for eviction for grounds under Section 14(1)(a),
(b), (d) & (h) of Delhi Rent Control Act, 1958 has been allowed.
However, as per the provisions of DRC Act, in case a tenant is evicted for nonpayment of rent under Section 14(1)(a) of DRC Act, he has to be given a chance for payment of arrears of rent so as to enable him to avail the benefit under Section 14(2) of DRC Act.
For the reasons contained in the judgment, respondent is directed to pay arrears of rent with effect from 1.8.2003 @ Rs.1750/ per month towards rent and Rs.300/ towards electricity and water charges within a period of one month from today.
The main file be consigned to record room and Ahlmad is directed to prepare a separate miscellaneous file for the purpose of consideration of benefit under section 14(2) of DRC Act. Put up on 29.09.2012. A copy of this judgment be kept in the separate miscellaneous file.
(Sugandha Aggarwal) A.R.C./NW/Rohini/30.8.2012 E.No.1262/2006 Page No. 34 of 34