Delhi District Court
Rajeev Sharma E85/09/97 vs Ram Kumar Verma on 5 December, 2011
IN THE COURT OF SANDEEP YADAV, Sr. CIVIL JUDGE cum RENT
CONTROLLER (SOUTH), SAKET COURTS,
NEW DELHI
1. Rajeev Sharma E85/09/97
S/o. Sh. Net Ram Sharma
2. Sanjeev Sharma
S/o. Sh. Net Ram Sharma
Both R/o. 40A,Yusuf Sarai
New Delhi ..... Petitioners
Vs.
1. Ram Kumar Verma
S/o. Late Sh. Rattan Lal
72/1 Yusuf Sarai Main Market
Mehrauli Road, New Delhi
2. Moti Lal
S/o. Late Sh. Rattan Lal
72/1, Yusuf Sarai Main Market
Mehrauli Road New Delhi
..... Respondents
Petition u/s. 14 (1)(b) of Delhi Rent Control Act
(a) Date of institution : 20.08.97
(b) Date when judgment reserved : 16.09.11
(c) Date of Judgment : 05.12.11
JUDGMENT
This eviction petition has been filed by Mr. Net Ram Sharma u/s 14(1)
(b) of Delhi Rent Control Act against respondent No. 1, Mr. Ram Kumar 02403C0020201997 1/12 Verma and respondent No. 2 Motilal with the following averments :
1. Petitioner is the landlord of shop No. 72/1, Main Market, Yusuf Sarai Main Road, New Delhi ( hereinafter referred to as "the tenanted shop"). The tenanted shop which previously bore No. 71/1, Bazar Yusuf Sarai, New Delhi was let out to respondent No. 1 in 1953 by the father of the petitioner and respondent No. 1 had executed a rent note dated 06.12.53 in favour of the father of the petitioner. The respondent no.1 has sublet, assigned or otherwise parted with the possession of the part of the tenanted shop to respondent No. 2 after 9th day of June 1952 without obtaining the consent in writing of the petitioner or the predecessor in interest. Originally the shop No. 72/1 was one shop with shutter and had no partition. Respondent No. 2 is in exclusive possession of a portion of the mark A, B, C, D shown in the site plan. The said portion marked A, B, C, D had separate shutter which remained under lock and key of respondent No. 2 and respondent No. 2 was running the business of watch merchant and repair in the said portion of tenanted shop. The petitioner thus sought the eviction of the respondents from the tenanted shop on the ground of subletting. During the pendency of the petition, petitioner Mr. Net Ram Sharma died and his legal heirs i.e, Mr. Rajeev Sharma and Mr. Sanjeev Sharma were impleaded as petitioners in this case vide order dt. 13.01.10.
2. Respondent No. 1 in the written statement put forth the defence that any cause of action in favour of the plaintiff has evaporated on the ground of creation of new tenancy in favour of respondent No. 1 on 02403C0020201997 2/12 account of enhancement of the rent w.e.f. April 1997. Respondent No. 1 stated that the petitioner has concealed the material facts regarding the existence of shop No. 72/1 and has falsely stated that shop No. 72/1 was earlier having the number 71/1. Respondent No. 1 stated that the site plan filed by the petitioner is an incorrect site plan. The respondent No. 1 indirectly admitted that the petitioner as his landlord saying that the petitioner is one of the legal heir of Shri Chunnilal, original landlord and has been receiving the rent after the death of the original landlord. Responding to the allegation of subletting, respondent No. 1 stated that respondent No. 2 is retaining the tenanted shop with ulterior motive to help the petitioner. The respondent No. 1 contended that the respondent No. 2, who happens to be the younger brother of respondent No. 1 used to help him by working as his authorised representative and was mainly engaged in outdoor duties. Respondent No. 1 alleges that respondent No. 2 turned dishonest after obtaining a shop in NDMC market. Respondent No. 1 further alleges that respondent No. 2 on the instigation of the petitioner has illegally and forcefully occupied the portion of the tenanted shop. Respondent No. 1 contented that the terms for shop No. 72/1 have been properly covered by the rent note whereas the tenanted shop has been taken on rent in or around February 1950 under an oral tenancy. Respondent No. 1 thus contended that the rent note does not cover the tenanted shop. Respondent No. 1 stated that there is no subletting of the tenanted shop either in whole or in part. Respondent No. 1 contented that the alleged subletting on his part 02403C0020201997 3/12 pertains to the period prior to 09.06.52 for which no consent of permission of the petitioner is required. The respondent No. 1 contended that respondent No. 2, his sons and sons of respondent No. 1 were working in the tenanted shop as authorized representative for or on behalf of respondent No. 1.
3. The respondent No. 2 in the written statement alleged collusion between the petitioner and the respondent No. 1 submitting that respondent No. 1 has developed animosity with respondent No. 2. The respondent No. 2 came out with the case that shop No. 72/1, Yusuf Sarai, Main Road, Delhi is divided in two parts for the last many years and the right hand portion of the shop is in the possession of respondent No. 2 for the last more than 30 years and respondent No. 2 is a tenant in the said portion. Respondent No. 2 claims that he has been making the payment of rent regularly @ Rs. 30/ per month to the petitioner but the petitioner is not issuing any rent receipt. The respondent No. 2 alleged that the petitioner and respondent No. 1 have joined hands and created false and fabricated documents. Respondent No. 2 stated that he has been in the possession of the tenanted shop for the last more than 30 years and had there been any subletting, the petitioner would not have been a silent spectator. The respondent No. 2 alleged that petitioner is trying to take advantage of the dispute between the two brothers. Respondent No. 2 thus contended that he is a tenant in his independent right in his own portion while respondent No. 1 is tenant in his own portion. The respondent No. 2 expressed ignorance 02403C0020201997 4/12 about any rent note executed between the respondent No. 1 and petitioner's father.
4. In order to succeed in the petition u/s. 14 (1)(b) of DRC Act, the landlord has to prove that tenant has sublet, assigned or otherwise parted with the possession of whole or any part of premises without obtaining the consent in writing of the land.
5. The erstwhile petitioner Mr. Netram Sharma who was examined as PW1 deposed that respondent No. 1 is his tenant in respect of the tenanted shop. PW1 proved the site plan and Ex.PW1/1. Petitioner deposed that the rent note Ex. PW1/1 was executed by respondent No. 1 at the time of taking the tenanted shop on rent from his father. Petitioner deposed that respondent No. 1 put his signature and thumb impression at point A and B on the rent note Ex.PW1/2 in his presence. Petitioner deposed that respondent No. 1 has sublet, assigned or parted with the possession of the portion marked A, B, C, D in the site plan Ex.PW1/2 and respondent No. 2 is in exclusive possession of the portion marked A, B, C, D in Ex.PW1/1. Petitioner deposed that the portion marked as A, B, C, D is under the lock and key of respondent No. 2. Petitioner deposed that respondent No. 1 has sublet, assigned and parted with the possession of portion marked A, B, C, D to the respondent No. 2 without his consent and consent of his father. When petitioner was cross examined by Ld. Counsel for respondent No. 1 he deposed that house tax is paid separately in respect of property no.71/1 and 72/1. Petitioner deposed that earlier the tenanted shop was 02403C0020201997 5/12 numbered as 71/1 and now it has been numbered as 72/1. The petitioner deposed that the number was changed by the Municipal Corporation but he has not brought any proof in this regard. The petitioner admitted in cross examination that in the rent note the tenanted shop has been numbered as 71/1. The petitioner denied the suggestion that the property No. 72/1 and 71/1 are separate properties. The petitioner denied the suggestion that he has increased the rent in April 1997. Petitioner further denied the suggestion that the respondent No. 1 is working in his business since 1950 or since the inception of the tenancy.
6. PW 2 Moti Ram is a witness to the rent note Ex PW1/2. PW 2 deposed that respondent no. 1 Ram Kumar Verma executed rent note in favour of Mr. Chunni Lal in his presence and signed the rent note Ex. PW1/2 at point A and B.
7. PW 2 in cross examination deposed that he lastly visited the property in the year 1985 and at that time he has seen only Mr. Ram Kumar Verma in the tenanted shop. PW 2 further deposed that he does not know Mr. Ram Kumar Verma's brother Mr. Moti Lal.
8. RW 1 Ram Kumar Verma deposed that shop no. 71/1 Yusuf Sarai Main Market, New Delhi, was let out to him in addition to shop no. 72/1. RW 1 further deposed that shop no. 71/1 was let out to him in December 1953 and same was vacated by him in April 1954 since no roof was provided by the landlord. Therefore, respondent no. 1 in his evidence put forth the case that shop no. 71/1 and 72/1 are two different 02403C0020201997 6/12 shops and both of them were let out by the petitioner separately. RW 1 further deposed that respondent no. 2 is his real brother and is working with him in shop no. 72/1 since the inception of tenancy in February 1950. Respondent no. 1 further deposed that respondent no. 2, his sons, as well as sons of respondent no. 1 were working with him in shop no. 72/1 as Authorised Representatives. Respondent no. 1 deposed that he served the legal notice dt. 22.11.93 upon respondent no. 2 asking him to quit shop no. 72/1. It has also come in the deposition of RW 1 that respondent no. 2 got stay order in his favour and is enjoying wrongful occupation of shop no. 72/1 under the garb of stay order passed in suit no. 681/93. RW 1 deposed that he has taken all steps and adopted due process of law to evict the respondent no. 2 from shop no. 72/1 the moment he came to know about dishonest intention of respondent no.
2. RW 1 further deposed that petitioner and his sons have executed new tenancy agreement on 03.05.98 w.e.f 01.04.97 @ Rs. 175/ and thus condoned any alleged act of subletting. Respondent no. 1 deposed that petitioner is not the owner but is only one of the legal heirs of late Pt. Chunni Lal Sharma and has no right to maintain the present petition. RW 1 categorically deposed that tenanted shop bore no 72/1 from very beginning and it never bore no. 71/1 at any point of time. RW 1 went on to depose that shop no. 72/1 is a different shop and same is presently occupied by Mr. Brij Lal. Respondent no. 1 deposed that there is no subletting or parting with the possession of any portion of shop no. 72/1 by respondent no. 1 to respondent no. 2.
02403C0020201997 7/12
9. In the cross examination, RW 1 deposed that some writing was executed between him and Sh. Chunnilal when the premises in dispute was let out to him. However, respondent no. 1 admitted his signature on Ex. PW1/2 at point B & C and deposed that rent note Ex. PW1/2 was executed wit respect to shop no. 71/1. RW 1 denied the suggestion that the suit premises bore no. 71/1 Yusuf Sarai, Main Market, New Delhi in 1953 and this number was subsequently changed to 72/1, Yusuf Sarai, Main Market, New Delhi. RW 1 admitted in cross examination that respondent no. 2 is carrying on the business in the portion marked as ABCD in the site plan Ex. PW1/1. RW 1 denied the suggestion that he has sublet, assigned or parted with the possession of ABCD in the site plan Ex. PW1/1 to respondent no. 2. RW 1 further deposed that no written agreement was executed for creation of new tenancy. RW 1 volunteered to depose that rent receipt of Rs. 175/ dt. 03.05.98 is the only rent agreement to this effect.
10. I have heard Ld. Counsel for petitioner as well as Ld. Counsel for respondent no. 1 and 2 at length and considered the rival submissions. I have carefully perused the record the first controversy raised by respondent no. 1 is that shop no. 72/1 was never numbered as 71/1. Ld. Counsel for respondent no. 1 submitted that petitioner has not led any evidence to prove that the tenanted shop earlier numbered as 71/1. No doubt, petitioner has not led any evidence in this regard, although it is the case of petitioner that tenanted shop which initially bore no. 71/1 has been renumbered as 72/1. The failure of petitioner to prove that the 02403C0020201997 8/12 shop which was earlier numbered as 71/1 subsequently numbered as 72/1 will not make any difference in view of the fact that respondent no. 1 in written statement has admitted that he is tenant in the shop no. 72/1, Yusuf Sarai, Main Market, Mehrauli Road, New Delhi and petitioner is the legal heir of original landlord Sh. Chunni Lal and has been receiving rent. Therefore, the question whether the tenanted shop which is presently numbered as 72/1 was earlier numbered as 71/1 becomes irrelevant.
11. It has been admitted by respondent no. 1 as well as respondent no. 2 that respondent no. 2 is in exclusive possession of certain portion of tenanted shop. Case of respondent no. 1 is that respondent no. 2 being his younger brother was earlier assisting him in the tenanted shop and was working as his representative who has subsequently turned dishonest and his retained the possession of portion of tenanted shop on the basis of stay order granted by the Civil Court. Respondent no. 2 on the other hand contended that he is tenant in his independent capacity in certain portion of tenanted shop. In any case, it is admitted position that respondent on. 2 is in exclusive possession of a portion in tenanted shop. Once, it is established that a person other than the tenant is in exclusive possession of whole or a portion of tenanted shop, the burden shifts to tenant to prove that the third person occupied the tenanted shop with the consent of petitioner. Respondent no. 1 has not led any evidence in this regard to prove that respondent no. 2 came in the possession of portion of tenanted shop with the consent of 02403C0020201997 9/12 petitioner. In fact it is not the case of respondent no. 1 that respondent no. 2 came into the possession of portion of tenanted shop with the consent of petitioner. Respondent no. 1 deposed before the Court that respondent no. 2 who is his younger brother was earlier assisting him in the tenanted shop in the capacity of authorised representative. Respondent no. 1 deposed that he served the legal notice dt. 29.11.93 asking respondent no. 2 and his sons to quit the shop no. 72/1. Respondent no. 1 deposed that respondent no. 2 is enjoying wrongful user and occupation under the garb of stay order passed by the Civil Court. In fact, respondent no. 1 deposed that he was not allowed by respondent no. 2 and his sons to enter shop on. 72/1 for more than 2 ½ years. In other words for certain period, respondent no. 2 was in exclusive possession of entire tenanted shop. The evidence led by respondent no. 1 himself make it a full proof case of subletting.
12. Respondent no. 2 Moti Lal in his evidence by way of affidavit deposed that shop no. 72/1 Yusuf Sarai, Main Market , Mehrauli Road, New Delhi, is divided into two portions since last so many years and the right hand side portion towards Mehrauli is in possession of the respondent no. 2 i.e, in his possession for last more than 30 years and is tenant in respect of that in his own right. Respondent no. 2 further deposed that he has been making the payment of rent regularly @ Rs. 30/ per month to the petitioner.
13. Respondent has not specified as to when he became tenant in the portion of tenanted shop. In cross examination of RW 1 by Ld. Counsel 02403C0020201997 10/12 for respondent no. 2, a suggestion was put to the effect that tenancy was created jointly in the name of respondent no. 1 and his brother i.e, respondent no. 2. In other words, respondent no. 2 contended that tenancy was created jointly in his name and in the name of respondent no. 1. At another place, a suggestion was put to respondent no. 1 by the Ld. Counsel for respondent no. 2 whether the tenancy was started in the year 1950. When respondent no. 2 was examined on 08.03.07 he gave his age as 70 years. In other words, respondent no. 2 must have been a minor in the year 1950 or in the year 1953 when the tenancy was created in favour of respondent no. 1. A minor cannot enter into an agreement of tenancy.
14. In the written statement, respondent no. 2 stated that he has been paying the rent regularly @ Rs. 30/ per month. In cross examination, respondent no. 2 deposed that he used to pay the rent @ Rs. 27.50 per month which was lastly increased to Rs. 120/ per month. Therefore, there is a material contradiction in the written statement and in the cross examination of RW 2 with regard to rate of rent paid by him. In his evidence by way of affidavit, respondent no. 2 deposed that he has been paying the rent regularly @ Rs. 30/ per months to the petitioner. In the cross examination RW 2 deposed that he does not know the petitioner or Mr. Rajiv Sharma. RW 2 further deposed in cross examination that he has not paid rent to Mr. Net Ram or to his family. Therefore, there is a palpable contradiction in the deposition of respondent no. 2. Respondent no. 2 has not been able to prove that he is 02403C0020201997 11/12 tenant in his independent capacity. Respondent no. 2 in cross examination deposed that he has documentary proof regarding tenancy but has not brought those documents. The only conclusion that can be drawn from analysis of evidence led by respondent no. 2 is that respondent no. 2 has failed to prove that he is tenant in independent capacity in a portion of tenanted shop.
15. From the above discussion, it is clearly proved that respondent no. 1 has sublet the tenanted shop to respondent no. 2 without obtaining the consent in writing of petitioner. Accordingly, the petition filed by the petitioner Mr. Net Ram Sharma against the respondents i.e, respondent no 1 Ram Kumar Verma , respondent no. 2 Moti Lal, is held to be successful. An eviction order is passed in favour of petitioners Mr. Rajeev Sharma and Mr. Sanjeev Sharma against the respondents i.e, respondent no 1 Ram Kumar Verma , respondent no. 2 Moti Lal with respect to the tenanted shop i.e. shop No. 72/1, Main Market, Yusuf Sarai Main Road, New Delhi. However, this order shall not be executable for a period of two months from the date of order.
File be consigned to Record Room.
Announced in the open court (SANDEEP YADAV)
on 05.12.11 Sr. CIVIL JUDGE cum RENT
CONTROLLER (SOUTH)
SAKET COURTS, NEW DELHI
02403C0020201997 12/12