Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 10, Cited by 0]

Delhi District Court

Shri Allaudin S/O Late Shri Munshi vs Shri Buniyad Ali @ Bundu S/O Late Shri ... on 16 February, 2010

                                                   ­1­

  IN THE COURT OF Ms. SUNITA GUPTA : DISTRICT JUDGE­VII/NE­CUM­
ADDITIONAL RENT CONTROL TRIBUNAL : KARKARDOOMA COURTS : DELHI :

RCT No. 85/09

1. Shri Allaudin S/o late Shri Munshi,. 
    Resident of 1175, Gali No.38, Jaffrabad, Delhi­53. 
2. Shri Akram son of Shri Abrar,
    Resident of House No.221, Gali No.11, Jaffrabad, Delhi­53.
                                                            ....Appellants. 
       Vs. 

Shri Buniyad Ali @ Bundu S/o late Shri Alahdiya, 
R/o House No.B­106, New Seelampur, Delhi­53.
                                                                          ....Respondent. 

O R D E R :

­

1. Feeling aggrieved by the judgement dated 03.09.09, passed by ld. Additional Rent Controller, North­East, Karkardooma Courts, Delhi, in eviction petition bearing No.162/08, whereby an eviction order was passed against the appellants, present appeal has been filed under section 38 of Delhi Rent Control Act, 1958.

2. Briefly stated the facts giving rise to the filing of the present appeal are that the respondent­petitioner filed an eviction petition under section 14(1)(b) of Delhi Rent Control Act against the respondent interalia on the allegations that initially the tenanted premises comprising of one shop on the ground floor of property No.B­106, New Seelampur, Delhi was let out to respondent No.1 for commercial purpose but respondent No.1 without consent of the petitioner had sublet the tenanted premises to respondent No.2 and has been collecting rent at the rate of ­2­ Rs.4,000/­ per month. Respondent No.1 has been running his business in the shop on the ground floor part of property No.221, Gali No.11, near Ex Taj Hotel, Jaffrabad, Delhi permanently and has been doing the business of monkey nut under the name and style of M/s A­One Moongfali Bhandar. Respondent No.1 has left the the shop in question and the shop is within the possession and control of respondent No.2 and hence this eviction petition.

3. Eviction petition was contested by the respondents who filed joint written statement wherein they took preliminary objection inter­alia on the ground that petition is not maintainable in as much as there is no subletting by respondent No.1 in favour of respondent No.2. Respondent No.2 is none else but the maternal nephew of respondent No.1 and he is not in control and occupation of the premises in question. Even otherwise the petitioner is no longer the owner in respect of the premises in question in as much as son of respondent No.1 has purchased the property from the petitioner by virtue of documents comprising of agreement to sell, general power of attorney, allotment letter etc. dated 4.2.2002. Respondent No.1 has filed a civil suit which is pending disposal before ld. Civil Judge. Even otherwise, the premises in question have been let out at the rate of Rs.60/­ per month and last paid rent in respect of the premises was Rs.200/­ per month. On merits, it was submitted that Shri Akram has no right, title or interest in the premises. Only on few occasions, he served as a helping hand for respondent ­3­ No.1 being his maternal uncle otherwise the premises are in exclusive control of respondent No.1. It was denied that respondent No.2 is running the business of monkey nut in the suit premises or that respondent No.1 has sublet the premises to respondent No.2 without the permission or consent of the petitioner a such it was submitted that the petition is liable to be dismissed.

4. Respondent­petitioner filed replication wherein he reiterated the stand taken in the main petition.

5. Respondent­petitioner examined himself besides PW2 Sh. Manoj. On the other hand, both the respondents examined themselves as RW1 and RW4. Besides that, they examined SI Keshpal Singh who proved FIR No.671/04 dated 20.11.2004 Ex.EW2/A and RW3 HC Keshpal Singh who proved FIR No.630/07 dated 17.9.07 Ex,.RW3/A.

6. After hearing ld. counsel for the parties, vide impugned order dated 3.9.09 ld. ARC came to the conclusion that there existed the relationship of landlord and tenant between the parties. Rate of rent was Rs.200/­ and by preponderance of probabilities, petitioner has succeeded in proving the subletting of tenanted premises by respondent No.1 to respondent No.2 and as such an eviction order was passed.

7. Feeling aggrieved by this order, present appeal has been filed. Notice of the appeal was given to the respondent. Trial court rcord was summoned.

­4­

8. I have heard Shri Ankur Mahendroo, Advocate for the appellant and Shri S.N.Khan, Advocate for the respondent and have perused the record. It was submitted by ld. counsel for the appellant that it was incumbent upon the petitioner to prove that respondent No.1 ceased to have physical possession in respect of the tenanted premises. Merely because the respondent No.2 was sitting in the tenanted premises on few occasions, no inference of creation of sub­ tenancy by respondent No.1 in favour of respondent No.2 can be drawn. It was further submitted that during cross examination, petitioner deposed that respondent No.2 is in occupation of tenanted premises for last 3­4 years. If that has been the case, why the eviction petition was not filed immediately. In fact, case of the petitioner is based on shaky allegations. Respondent No.2 is nephew of respondent No.1 and since on few occasions, he assisted his maternal uncle in his work, that does not mean that respondent No.1 either sublet or parted with possession of the suit premises in favour of respondent No.2. The allegations of petitioner that respondent No.1 has been charging a sum of Rs.4,000/­ per month from respondent no.2 is nothing but a figment of imagination and no evidence was led to prove any such subletting. Further more, after filing of the eviction petition, FIR was lodged by the son of the petitioner and in that FIR, it was nowhere stated that respondent No.2 was an unauthorised occupant or subtenant. He also referred to the photographs and it was submitted that same were not considered ­5­ in right percepective. On the other hand, respondent has placed number of documents showing his exclusive possession and control of the suit property. Besides that the property has been purchased by son of respondent No.1. That being so, petitioner ceased to have any right, title or interest in the suit premises and on that account also, petition was not maintainable. As such it was submitted that eviction order is liable to be set aside. Ld. counsel for the appellant placed reliance on Hazari Lal and Ors Vs. Giani Ram and Ors. 1972 RCR 74; Chander Kishore Sharma & Ors Vs. Smt.Kampa Wati AIR 1984 Delhi 14 and; Rai & Sons (P) Ltd. & Ors Vs Phelps & Co.(P) Ltd., 38 (1989) DLT 94.

9. On the other hand, ld. counsel for the respondent submitted that the impugned order does not suffer from any infirmity as such appeal is liable to dismissed.

10. I have given my considerable thought to the respective submissions of ld. counsel for the parties and have perused the record.

11. At the outset, it may be mentioned that under general law subletting is lawful in the absence of contract or usage to the contrary, as provided by the opening words of section 108 of Transfer of Property Act. Subletting is not an act forbidden or prohibited by law. The tenant may sublet the premises depending on the terms of the contract between him and landlord on the consent of the landlord to the tenant to sublet the premises. It is only the absence in writing of the consent of ­6­ the landlord which makes subletting by the tenant a ground for ejectment. Section 14(1)(b) of the Act uses three expressions, namely, 'sublet', 'assigned' and 'otherwise parted with the possession'. In all the three, there must be a transfer of legal possession of the whole or part of the demised premises to the person other than the tenant. In order to constitute subletting, there must be parting of the legal possession by the lessee and exclusive possession of the sub­tenant. Parting of the legal possession means possession with the right to include and also right to exclude others. In subletting there should exist the relationship of landlord and tenant as between the tenant and his sub tenant and the instances of letting or the tenancy must be found namely, the transfer of an interest in the estate, demand or rent and the right of possession against the tenant in respect of the premises sublet. Subletting means transfer of an exclusive right to enjoy the property in favour of the third party and the said right must be in lieu of payment of some compensation or rent. Possession of third party alone does not establish subletting unless the exclusive possession coupled with the payment or some consideration is established.

12. In M/s Mahendra Saree Emporium v. G.V.Srinivasa Murthy JT 2004 (7) SC 20 Hon'ble Supreme Court has held that the term sub let is not defined in the Act 'new or old' but the definition of lease can be adopted mutatis mutandis for defining sub lease. In view of section 105 of Transfer of Property Act, 1882, a sub ­7­ lease would imply parting with by the tenant or a right to enjoy such property in favour of his sub tenant. Similarly in Girdharibhai v. Saiyed Mirasaheb Kadri & Ors. (1987) 3 SCC 538, it was held that there cannot be a subletting unless the lessee parted with the legal possession. The mere fact that some other person is allowed to use the premises while the lessee retains the legal possession is not enough to create a sub lease. In Hazari Lal & Ors Vs. Giani Ram & Ors.1972 RCR 74, also it was held that where legal possession is retained by a tenant, there is no parting with possession and mere user by another person is not such parting with possession. The expression 'otherwise pared with he possession' was commented upon in para 9 of the judgment which reads as under :

" 9. Clause (b) to the proviso to sub­section (1) of Section 14 of the Rent Act uses three expressions, namely, 'sub let', assigned and otherwise parted with the possession' of the whole or any part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with three different concepts and apply to different circumstances. In subletting there should exist the relationship of landlord and tenant as between the tenant and his sub tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises sublet. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression 'parted with the possession' undoubtedly postulates as has been held in the cases mentioned above the parting with legal possession. As we understand it, the lease has given ­8­ parting with possession means giving possession to persons other than those whom possession and 'the parting with possession' must have been by the tenant. The mere user by the the persons is not parting with possession so long as the tenant retains the legal possession himself or, in other words, there must be vesting of possession by the tenant in another persons by divesting himself not only of physical possession but also of right to possession. So long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration, it would not be possible to say that the tenant has parted with possession even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises. If the tenant has a right to disturb the possession of his guest at any time, he cannot be said to have parted with the possession of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with the possession so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof. a mere privilege or licence to use the whole or a part of the demised premises which privilege or licence can be terminated at the sweet will and pleasure of tenant at any time would not amount to 'parting with possession'. The divestment or abandonment of the right of possession is necessary in order to invoke the clause of parting with possession."

13. In view of these authoritative pronouncements, inquiry in such cases has to be as to who is in legal possession of the premises.

14. However, before coming to this aspect of the matter, I shall take up the ­9­ objection taken by ld. counsel for the appellant regarding the maintainability of the eviction petition on the ground that there does not exist relationship of landlord and tenant between the parties in as much as son of appellant No.1 had purchased the property in question from the respondent and a suit for declaration is pending disposal before the ld. civil court.

15. In regard to relationship of landlord and tenant between the parties. Perusal of the pleadings of the parties coupled with the evidence led by them, goes to show that it is undisputed case of the parties that the premises were let out to the appellant by the respondent. However, according to the appellant, now the property has been purchased by his son and according to him various documents have viz. agreement to sell, GPA, allotment letter dated 4.2.02 have been executed by the respondent in favour of his son. Ld. trial court rightly observed that onus to prove this fact was upon the appellant and while appearing as RW1 he deposed that in February, 2002, property has been transferred by the petitioner in favour of his son by virtue of agreement to sell, receipt, GPA and allotment letter etc. where after his son has started collecting rent from him. However, no such document of transfer has been filed on record. On the other hand, during his cross examination, he admitted that petitioner is landlord­owner of the premises under his tenancy. Under these circumstances, it was rightly observed that thee existed relationship of landlord and tenant between the ­10­ parties.

16. The main question for consideration is whether appellant No.1 has sublet the premises in question to Appellant No.2. Respondent­petitioner filed his affidavit Ex.PW1/A wherein he stated that respondent No.1­appellant No.1 initially was let out the tenanted premises but without any prior written consent, he subletted the tenanted premises to Respondent No.2. He is also collecting rent from respondent o.2 at the rate of Rs.4,000/­ per month. After subletting the tenanted premises about six months back from the filing of the petition. Respondent No.1 has been running his business in the shop on the ground floor part of property No.221, Gali No.11, near Ex Taj Hotel, Jaffrabad and doing the business of Monkey nut under the name and style of M/s A­1 Moongfali Bhandar at the aforesaid shop. Respondent No.1 has left the tenanted shop let out by him and given to Respondent N.2 illegally by assigning Respondent No.2 full control and possession of the tenanted shop. After subletting respondent No.1 has no physical control or possession over the tenanted shop. Shop is in exclusive possession and control of Respondent No.2 who opens this shop , does the business and closes the shop himself. He placed on record photograph Ex.PW1/1 to PW1/6 for showing respondent No.2 doing the business in the tenanted shop and other photographs Ex.PW1/7 to PW1/10 for showing that respondent No.1 is doing the business at premises no.221, Gali No.11, near Ex Taj Hotel, Jaffrabad.

­11­ In cross examination, he deposed that he does not know the contents of Ex.PW1/A which is his examination in chief by way of affidavit. He admitted that he is living in the same property wherein demised premises is situated. Respondent No.2 is the maternal nephew of respondent No.1. He went on stating that respondent No.1 visits the premises but does not come inside the suit property. Respondent No.2 is in occupation of the suit premises for the last 3­4 years. Although he objected to respondent No.2 occupying the premises but admitted that he did not make any complaint to the police or any authority in this regard. He also did not raise any objection with regard to occupation of respondent No.2 in the civil suit filed by respondent No.1. He admitted that his son Mohd. Sajid lodged FIR o.630/07 on 16.11.2007 against the respondent and one Mr.Salauddin and in that FIR, occupation of respondent No.1 and Salauddin was admitted. He admitted that in the photograph respondent No.1 is shown in the demised premises. He denied the suggestion that respondent No.2 being nephew of respondent No.1 is assisting him in carrying out the business from the demised premises and that respondent No.2 has no right, title or interest in the premises in question. He further denied that respondent No.2 is not in exclusive possession of the demised premises. He could not produce any document to show that respondent No.1 was collecting rent from respondent No.2 at the rate of Rs.4,000/­ or at any rate whatsoever.

­12­

17. He has examined PW2 Shri Manoj in support of his case who has deposed that Akram is doing the business on the ground floor part of property No.B­106, New Seelampur. he opens and closes the shop and the shop is in his exclusive possession. Akram is doing the business in the said shop for the last one and half year. He has also seen Allaudin collecting rent from Akram at the rate of Rs.4,000/­ per month 2­3 times. Allaudin has been doing the business of monkey nuts on the ground floor of property bearing No.221, Gali No.11 Ex Taj Hotel, Jaffrabad. In his cross examination, witness has deposed that shop in question was let out to Shri Allaudin respondent No.1 at the rate of Rs.4,000/­ per month. He has seen Akram in the shop for the last 2­3 years. He admitted that respondent No.1 as well as his son Salauddin are also seen in the tenanted premises. He could not tell the date on which date he saw Allaudin collecting rent from Mr.Akram. he denied the suggestion that respondent No.1 has never collected rent from respondent No.2. He could not give any documentary proof to show that Akram closes and opens the shop. He could not say if respondent No.2 simply assisted the respondent No.1 in his day to day business being his nephew.

18. On the other hand, appellant No.1 examined himself by way of his counter affidavit. He filed the affidavit Ex.RW1/A wherein he stated that premises in question was let out to him at the rate of Rs.60/­ per month and the last paid rent was Rs.200/­ per month. Respondent No.2 has no right, title or interest in the ­13­ tenanted premises. On few occasions, he served as a helping hand he being his maternal uncle. He is in exclusive control, possession and occupation of the tenanted premises and there has been no subletting by him in favour of respondent No.2 and as such there is no question of charging any amount whatsoever from respondent No.2 much less Rs.4,000/­ per month. In order to prove the fact that he is in occupation of the premises, he proved letter, post card Ex.RW1/1 and RW1/2, photo copy of the pass book of State Bank of India and Central Bank of India Ex.RW1/4 and Ex.RW1/5. He also filed photographs showing the exclusive possession and control in th tenanted premises as RW1/6 to RW1/9. He further deposed that one false FIR bearing No.630/07 was lodged at the instance of petitioner against him, his son and nephew Akram to get the tenanted premises vacated and even in the FIR there was no mention of sub tenancy having been created by him. In cross examination, he admitted that he has been served with notice of eviction petition on the address A­one Mungfali Bhandar, 221, Gali No.11, Jaffrabad, Delhi. No servant is working with him on the said shop. However, his sons are assisting him in the business. Akram was not working with him. It is occasional help which he seeks from Akram whenever due to his health, he is unable to do his job. He admitted that in photograph Ex.PW1/2, Akram is visible sitting in the shop and in photograph Ex.PW1/7, he is seen at point 2. He denied the suggestion that he has sublet the premises to Akram at the ­14­ rate of Rs.4,000/­ per month.

19. Appellant No.2/respondent No.2 Akram also appeared in the witness box and in his affidavit Ex.RW4/A, he has deposed that respondent No.1 is tenant in the premises in question and he has no right, title or interest in the tenanted premises and only on few occasions, he served as a helping hand for his maternal uncle when he is unwell otherwise he has no interest in the business carried out by his uncle. There is no relationship of landlord and tenant and lessee and sub lessee between him and his uncle. and his possession in the tenanted premises on the occasion of ill health of his uncle is only permissive. He never paid any amount to his uncle nor has carried out any business from the tenanted premises. In cross examination, he denied the suggestion that respondent has sublet the tenanted premises to him on a monthly rent of Rs.4,000/­ per month and that it is he who opens and closes the shop every day.

20. In view of the aforesaid evidence, ld. ARC observed that two facts emerged

(i) respondent No.2 in the photograph Ex.PW1/2 is visible as carrying on business from the tenanted premises and (ii) respondent No.1 has another shop and is running his business from the said shop in photograph Ex.RW1/7. Ld. ARC observed that the explanation given by respondent no.2 regarding his presence in the shop is that he helps respondent No.1 occasionally. However, there is a contradiction in the statement of respondent with regard to time or occasion upon ­15­ which such a help is provided in as much as according to Respondent No.1, Respondent no.2 runs the shop when he is unable to do so himself because of his ill health whereas according to respondent No.2 he does so when respondent No.1 goes to ease himself. as such it was observed that the explanation seems to be quite lame. In this regard, it may be mentioned that as observed by Hon'ble High Court in Chander Kishore Sharma & Ors. (Supra) initial burden to prove the ground of eviction is on the landlord and not on the tenant. Tenant cannot be asked to prove the negative. At the most, in view of this contradiction it can be said that he has failed to disprove what landlord has proved but even the facts proved by him do not advance his case in as much as although respondent­ petitioner claimed that the premises have been sublet by the appellant No.1 to appellant no.2 at the rate of Rs.4,000/­ per month. However, this is only the mere bald assertion as it was admitted by the petitioner­respondent in cross examination that he does not have any document to show that respondent No.1 has been collecting rent either at the rate of Rs.4,000/­ per month or at any rate whatsoever. No reliance can be placed on the testimony of Shri Manoj who has deposed that in his presence, appellant no.2 has paid Rs.4,000/­ p.m. to appellant No.1 in as much as in his cross examination, he has deposed that the shop in question was let out to respondent No.1 at the rate of Rs.4,000/­ This in fact, is not even the case of the respondent­petitioner in as much as it is his case that the ­16­ premises was initially let out to respondent No.1 at the rate of Rs.60/­ per month which was later on increased to Rs.2,000/­ per month. Under the circumstances, this witness has even gone beyond the case of the petitioner. Moreover, he could not even tell the date on which Mr.Allaudin was seen collecting rent from Akram. As such factum of realising Rs.4,000/­ p.m. as rent by Appellant No.1 from Appellant No.2 is not proved.

21. Further more, there is discrepancy in the testimony of the petitioner himself as to when the premises were sublet by respondent No.1 to respondent o.2 in as much as in his examination in chief, he stated that respondent No.1 sublet the tenanted premises six months back from the date of filing present petition however, in cross examination, he deposed that Akram has been in occupation of the suit premises for the last 3­4 years. Although according to him, he objected to his occupation but he did not make any complaint to the police or any authority in this regard. According to Manoj, he had seen Akram in the suit premises for the last 1½ year. Under the circumstances, petitioner himself is not sure as to when the premises were occupied by Akram.

22. The result is that neither any concrete evidence is forthcoming that respondent No.1 has sublet the tenanted premises to respondent No.2 at what point of time or at what rate, nor any concrete evidence has come on record to establish that the premises are in exclusive possession of respondent No.2. As ­17­ such, Respondent­petitioner himself failed to discharge the initial onus which lay upon him. That being so, even if a discrepancy has appeared in the testimony of appellant, as to in what capacity Appellant No.2 was seen in the premises, since the respondent­petitioner himself has failed to prove his case.

23. As such this discrepancy does not advance his case. It was further observed by ld. trial court that the respondent is running another business at property No.221, Gali No.11, Ex Taj Hotel, Jaffrabad and it is not possible for a person to run two different business on two different locations and in the same span of time unless he keeps servant to assist him on the shop. During his cross examination, appellant No.1 admitted that he has no servant to assist him for running the business in the tenanted premises. Here it may be mentioned that appellant No.1 has deposed that his son assists him in the business. Consequently even if he has not kept any employee at his shop since his sons are there to assist him, no presumption can be drawn that he cannot run business at two places at the same time.

24. Ld. counsel for the appellant also relied upon FIR Ex.RW3/A which was lodged one month after filing of the eviction petition. This was the FIR lodged by son of the Respondent against Appellant No.1 wherein he admitted that Appellant No.1 is a tenant in respect of the demised premises. It was submitted that in that FIR it was no where mentioned that premises have been illegally sublet to ­18­ Appellant No.2 or was in his exclusive possession. Although it is correct that this FIR was not lodged by the petitioner himself but by his son but this is an important piece of evidence which goes against the petitioner, more particularly, keeping in view the fact that at the time of lodging of this FIR, the eviction petition on the ground of subletting, assignment or parting with possession had already been filed.

25. As regards photographs are concerned, appellant No.2 was found sitting in the suit premises whereas appellant No.1 was found sitting in another premises, from the photographs, no inference can be drawn that appellant No.1 has assigned or parted with possession of the suit premises to appellant No.2. As seen above, in order to make out a case of "parting with possession" it has to be proved that the tenant has divested or abandoned his right to possession. Parting with possession means giving possession to persons other than those to whom possession has been given by the lessee and parting with possessions must have been by the tenant, user by other person is not parting with possession so long as the tenant retains the legal possession himself. There must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. In Shri Gurdyal Singh Vs.Brij Kishore & Ors 1970 RCJ 1001, Hon'ble Justice Rajinder Sachar of Delhi High Court held that it it is not the law that no sooner does any person other than ­19­ a lessee occupies a premises it must be held that the tenant has parted with possession of he demised premises. what is to be seen in each case is whether the tenant has totally effaced himself and whether the possession of the third person is exclusively in his own right and to the ouster of the lessee. In Hazari Lal (Supra), it was held that mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with possession so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof. The divestment or abandonment of the right o possession is necessary in order to invoke the clause of parting with possession. Hon'ble Justice S.C.Jain of Delhi High Court in Sohan Lal vs. Sri Pal & Ors 48 (1992) DLT 65 also took the similar view and held that so long as the tenant keeps the control over the premises and the business run in the premises are of the tenant, sub letting, and parting with possession of the premises cannot be presumed. the act does not require the court to assume sub tenancy merely from the presence of an outsider.

26. PW2 Manoj himself admitted in the cross examination that respondent No.1 and his son are also seen in the tenanted premises. Keeping in view the close relationship of appellant No.1 and 2 who are related to each other as maternal uncle and nephew, the mere fact that appellant No.2 is visible in the photographs filed by the petitioner. does not give any presumption that appellant No.1 has ­20­ divested himself of the control of the tenanted premises or abandoned the right to possession. Except for the oral testimony of the respondent­petitioner absolutely no evidence has come on record to show that appellant No.2 is in exclusive possession of the suit premises or that he closes or opens the shop in question. Under the circumstances, the evidence led by the respondent petitioner falls short of proving the handing over 'exclusive possession' of the shop in question to appellant No.2. Under the circumstances, in my view, the findings of the ld. trial court cannot be sustained. Accordingly, appeal is allowed and impugned order dated 03.9.09 is set aside.

27. A copy of this order be sent to ld. trial court alongwith trial court record.

Appeal file be consigned to Record Room. 

Announced in the open Court                                               (Sunita Gupta)
          th
on this 16  day of February, 2010                           District Judge­VII/NE­cum­ARCT, 
                                                                   Karkardooma Courts, Delhi.