Delhi District Court
And vs Sh. Ramesh Pal Singh on 30 April, 2012
IN THE COURT OF SH BALWANT RAI BANSAL
ADDITIONAL RENT CONTROLLER (SOUTH),
SAKET COURTS, NEW DELHI
Objections u/s 25 of DRC Act filed in Execution Petition No. 89/2000
Date of Institution of the objections : 08.12.2000
Smt. Chhoti Devi (Since deceased through LRs)
(i) Sh. Kajod Mal Pareva
(ii) Sh. Om Praksh Pareva
S/o Sh. Kajod Mal Pareva
(iii) Sh. Yoginder Kumar
S/o Sh. Kajod Mal Pareva
(iv) Sh. Sushil Kumar
S/o Sh. Kajod Mal Pareva
(v) Smt. Sunita D/o Sh. Kajod Mal Pareva
All R/o 409, Shiv Gali,
Punjabi Bazar, Kotla Mubarkpur, New Delhi
......... Decree Holder.
Versus
1. Sh. Ramesh Pal Singh
S/o Late Sh. Gurwak Singh
2. Smt. Gurender Bedi
W/o Sh. Amarjit Singh Bedi
Both R/o A2, Green Apartment,
Selesvery Park, Pune
......... Judgment Debtors.
Page 1 of 50
AND
Eviction Petition No. E29/12 U/s 14 (1) (b) of DRC Act
Date of Institution of the petition : 30.03.1989
Smt. Chhoti Devi (Since deceased through LRs)
(i) Sh. Kajod Mal Pareva
(ii) Sh. Om Praksh Pareva
S/o Sh. Kajod Mal Pareva
(iii) Sh. Yoginder Kumar
S/o Sh. Kajod Mal Pareva
(iv) Sh. Sushil Kumar
S/o Sh. Kajod Mal Pareva
(v) Smt. Sunita D/o Sh. Kajod Mal Pareva
All R/o 409, Shiv Gali,
Punjabi Bazar, Kotla Mubarkpur,
New Delhi
.........Petitioners.
Versus
1. Sh. Ramesh Pal Singh
S/o Late Sh. Gurwak Singh
2. Smt. Gurender Bedi
W/o Sh. Amarjit Singh Bedi
Both R/o A2, Green Apartment,
Selesvery Park, Pune
Page 2 of 50
3. Sh. Ram Pal Singh
S/o Sh. Inderjit Singh
437, Shiv Gali, Punjabi Bazar,
Kotla Mubarkpur, New Delhi
.........Respondents.
Date of Judgment reserved : 18.04.2012
Date of Judgment pronounced : 30.04.2012
JUDGMENT:
1. Vide this common judgment I propose to decide:
(i) objections U/s 25 of DRC Act preferred by objector Sh. Ram Pal Singh in the execution petition No. 89/2000; and
(ii) an eviction petition filed by petitioner U/s 14 (1) (b) of DRC Act against the respondents.
2. It would be necessary to give a brief background of the case that how the objections u/s 25 of DRC Act has arisen. The petitioner Smt. Chhoti Devi had filed a petition U/s 14 (1) (a) of DRC Act on the ground of nonpayment of rent against the tenants namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi which was allowed by the Ld. Predecessor of this court vide order dated 25.08.2000 and eviction order was passed in respect of the suit premises i.e. one room/shop in Page 3 of 50 property No. 438 (Khasra No. 14), Punjabi Bazar, Kotla Mubarkpur, New Delhi as the respondents failed to comply the orders passed u/s 15 (1) of DRC Act in the said case. In order to execute the eviction order dated 25.08.2000 the petitioner filed the execution petition and in the said execution petition, when the warrant of possession of the suit premises were issued, the objector Sh. Ram Pal Singh filed the objections U/s 25 of DRC Act claiming his independent tenancy in the suit premises which are under disposal.
3. Brief facts as stated in the objections are that the property No. 438, Shiv Gali, Punjabi Bazar, Delhi - 110003 was originally owned by Sh. Amar Nath Bhardwaj who during his life time in 1967, gifted the said property to his daughter Smt. Sudershan Kumari. Later on, in 1979, Smt. Sudershan Kumari sold this property on the basis of customary documents viz. Agreement to sell, Power of Attorney, Indemnity Bond, Will, Affidavit etc. to Sh. Ramesh Chand Verma. Thereafter, in the middle of 1983 Sh. Ramesh Chand Verma again executed the customary agreement to Sell, Will, Power of Attorney Indemnity Bond, Receipt etc. and sold the property to Sh. Prem Kumar Nagi. One shop bearing Private No. 438/1 in the aforesaid property is in the possession of the objector and rest of the property is in actual Page 4 of 50 physical possession of the Decree Holder Smt. Chhoti Devi.
4. It is stated that the objector is a lawful tenant in the aforesaid shop @ Rs. 25/ per month since 01.07.1983. It is further stated that the original tenant in respect of the premises in suit was Sh. Gurwak Singh who died in 1975 leaving behind his widow Smt. Surinder Kaur and the present respondents no. 2 and 3 as his legal heirs and in the early 1980's Smt. Surinder Kaur also died leaving behind the said respondents/JDs No. 2 and 3. It is further stated that soon after acquiring the title to the aforesaid property in the middle of 1983, the then owner/landlord Sh. Prem Kumar Nagi along with some other persons approached the LRs of tenant Sh. Gurwak Singh and persuaded them to surrender their tenancy rights in respect of the premises in suit and consequently Sh. Prem Kumar Nagi came into actual physical possession of the premises in suit. In the last week of July, 1983 Sh. Prem Kumar Nagi against a consideration of Rs. 1 lakh let out the premises in suit to the objector Sh. Ram Pal Singh @ Rs. 25/ p.m. who paid the rent for the period 01.07.1983 to 31.12.1983 and again for the period 01.01.1984 to 30.06.1984 against receipts.
5. It is further stated that in early 1984, Sh. Prem Kumar Nagi negotiated to sell, transfer and convey the premises bearing No. 438, Page 5 of 50 Punjabi Bazar, Kotla Mubarakpur, New Delhi to Smt. Chhoti Devi who was in actual occupation of the aforesaid property except for the premises in suit. The deal was clinched on or about 15.11.1984 and the documents including the agreement to sell, power of attorney etc. were executed by Sh. Prem Kumar Nagi in favour of Smt. Chhoti Devi. It is further averred that the sale deed was executed directly by Smt. Sudershan Kumari, the original owner in favour of Smt. Chhoti Devi on 21.04.1987 in which Sh. Prem Kumar Nagi was confirming party/marginal witness and the said sale deed shows that sale consideration was in fact paid by Smt. Chhoti Devi to Sh. Prem Kumar Nagi and not to Smt. Sudershan Kumari and these facts show that Sh. Prem Kumar Nagi during 198384 was duly competent to induct tenants in the suit premises.
6. It is further stated that in order to oust the objector who is lawful tenant in the suit premises, Smt. Chhoti Devi in collusion with the JD No. 2 and 3 filed the eviction petition on the ground of non payment of rent and obtained the eviction order. It is further stated that the objector is a bonafide tenant and in actual physical possession of the suit premises since middle of 1983 and has been peacefully doing business since then and he is not bound by the eviction order dated Page 6 of 50 25.08.2000 because he was not impleaded as a party to the said eviction petition. It is further averred that the objector has an independent title to the premises in suit and the eviction order dated 25.08.2000 is inexecutable against the objector. It is also stated that eviction order dated 25.08.2000 has been obtained by the DH in collusion with the JDs/erstwhile tenants who had surrendered their tenancy rights in favour of Sh. Prem Kumar Nagi much prior to the institution of the eviction petition and, thereafter fresh tenancy was created in favour of the objector. Therefore, the objector has prayed that it may be hold by the Court that eviction order dated 25.08.2000 in respect of the premises in suit is not binding upon the objector and the objector is in possession of the said premises in his own independent right as a lawful tenant.
7. The DH Smt. Chhoti Devi filed reply to the objections contending that the objections filed by the objector are misconceived and not maintainable. It is stated that the objector had earlier moved an application U/o 1 Rule 10 CPC for impeadment as a party which was dismissed. It is further stated that order of eviction has become final between the parties which was passed after a long litigation of 12 years. It is further averred that the DH/petitioner has also filed an eviction Page 7 of 50 petition u/s 14 (1) (b) of DRC Act against the tenants namely Sh. Ramesh Pal Singh and Smt. Gurinder Bedi in which objector has also been made respondent no. 3 and in the said petition the objector did not file the written statement and his defence was struck off. It is further stated that objector also filed a civil suit for declaration and injunction in which his interim application U/o 39 Rules 1 & 2 CPC was dismissed. It is further averred that the objector has filed a false affidavit alleging that rent for the period 01.07.1983 to 31.12.1983 and the rent for the period 01.01.1984 to 30.06.1984 was paid to Sh. Prem Kumar Nagi against receipts and further a sum of Rs. 1 lakh was also given as pugri amount to said Sh. Prem Kumar Nagi and this plea has been taken by the objector for the first time. No such plea was taken by the objector while filing the application U/o 1 Rule 10 CPC which was filed by him in the main eviction petition and while filing the application U/o 7 Rule 11 CPC which was filed by him in eviction petition u/s 14 (1) (b) of DRC Act. It is contended that no tenancy was ever created in favour of the objector and the tenancy was never surrendered by the tenants Sh. Ramesh Pal Singh and Smt. Gurinder Bedi and these findings have also been given by the Ld. ARC, Delhi while deciding the petition u/s 14 (1) (a) of DRC Act. It is further Page 8 of 50 contended that the objector has come with the present objections when he lost the litigation on merits. The other contents of the objections are stated to be wrong and denied and the DH has prayed for dismissal of the objections.
8. The objector has filed rejoinder to reply filed by the DH re iterating the avements made in the objections and controverting the averments made in reply.
9. It would be relevant here to narrate the facts of the petition filed by the petitioner Smt. Chhoti Devi u/s 14 (1) (b) of DRC Act. The said petition has been filed by the petitioner against the successorin interest of Sh. Gurwak Singh, the original tenant in the suit premises namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi and the objector Sh. Ram Pal Singh has also been impleaded as respondent no. 3 in the said petition. The case of the petitioner is that the respondents no. 1 and 2 have sublet the suit premises in favour of the respondent no. 3 i.e. the present objector between JanuaryMarch, 1985 without the written permission of original owner Smt. Sudershan Kumari and even without permission of the petitioner. In the said petition, the respondent no. 1 failed to appear in the court despite service by way of publication and was proceeded exparte vide order dated 22.08.1991. The respondents Page 9 of 50 no. 2 and respondent no. 3 failed to file any written statement despite availing sufficient opportunities and hence their defence was struck off vide order dated 03.02.1993. It may be noted here that objector in the present objections u/s 25 of DRC Act was the respondent no. 3.
10. It is also relevant here to mention that present objections filed by the objector were earlier dismissed by the Ld. Predecessor of this Court vide order dated 30.03.2001 and the objector preferred an appeal against the dismissal of the objections. The Ld. ARCT, Delhi vide order dated 30.04.2001 set aside the order dated 30.03.2001 and directed that the parties will contest the proceedings u/s 14 (1) (b) of DRC Act where the defence of the objector was struck off observing that in case the findings are arrived at in favour of the respondent (petitioner herein) holding that the possession of the appellant is that of a subtenant, the objections preferred herein shall stand dismissed and in case no such finding is arrived at and the petition is dismissed, in that event the appellant shall have a right of hearing in the present proceedings u/s 25 of DRC Act and with these observations it was directed to dispose of the petition and objections.
11. The matter was further taken in the revision by challenging the order of the Ld. ARCT, Delhi and the Hon'ble High Court of Delhi Page 10 of 50 vide order dated 23.01.2002 modified the order passed by the Ld. ARCT, Delhi dated 30.04.2001 to the effect that objections filed by the objector u/s 25 of DRC Act and the petition filed by the petitioner U/s 14 (1) (b) of DRC Act shall be tried and disposed of together. Pursuant to the aforesaid order of the Hon'ble High Court of Delhi dated 23.01.2002, the evidence was led by the objector and DH in the objections filed u/s 25 of DRC Act. However, it was noticed that the parties have not concluded evidence in the eviction petition filed u/s 14(1) (b) of DRC Act and the Ld. Counsel for the parties agreed vide their statement recorded on 29.03.2012 that the evidence led by both the parties in the objections filed u/s 25 of DRC Act may be considered as evidence led by the parties in the petition filed u/s 14(1) (b) of DRC Act.
12. Since, as per the directions of the Hon'ble High Court of Delhi vide order dated 23.01.2002, both the objections filed u/s 25 of DRC Act preferred by the objector Sh. Ram Pal Singh and the eviction petition filed by the petitioner u/s 14 (1) (b) of DRC Act against the respondents has to be disposed of together, therefore vide order dated 29.03.2012 both the parties were asked to file the certified copy of the evidence led by them in the objections to be taken on record as Page 11 of 50 evidence led in the eviction petition filed u/s 14(1) (b) of DRC Act.
13. In the petition filed u/s 14(1) (b) of DRC Act, the petitioner claims that the respondents no. 1 and 2, successorininterest of the original tenant Sh. Gurwak Singh have sublet the possession of the suit premises to respondent no. 3 who is present objector. On the other hand, the objector in his objections filed u/s 25 of DRC Act is claiming his independent tenancy rights in respect of the suit premises. Therefore, the issue which is to be decided in both the cases is as to whether the objector is occupying the suit premises in his independent capacity and in case it is held that objector is occupying the suit premises in his individual capacity as claimed by the objector in his objections, then the petition filed by the petitioner u/s 14(1) (b) of DRC Act stands dismissed. Since, both the parties have relied upon the evidence led by them in the objections filed by the objector u/s 25 of DRC Act for the purpose of the petition u/s 14 (1) (b) of DRC Act as well, I propose to decide the objections u/s 25 of DRC Act and the petition u/s 14 (1) (b) of DRC Act together by way of this common judgment.
14. It is pertinent here to mention that during the pendency of the present proceedings, the DH/Petitioner Smt. Chhoti Devi expired Page 12 of 50 and on an application, her LRs as reflected in the memo of parties were brought on record vide order dated 07.11.2009.
15. In order to prove his case that he is occupying the suit premises in his individual capacity as a lawful tenant, the objector has examined 4 witness including himself as OW1, Sh. Abhay Kumar Jain as OW2, Sh. Prem Kumar Nagi as OW3 and Sh. Mukesh Bhardwaj as OW4.
16. The objector has examined himself as OW1 and has deposed more or less as per the averments made in the objections and has placed on record the certified copies of the rent receipts issued by Sh. Prem Kumar Nagi as Ex. OW1/1 & Ex. OW1/2, copy of notice issued by him through his counsel to the counsel of the DH as Ex. OW1/3, postal receipt and AD card as Ex. OW1/4 and Ex. PW1/5 respectively.
17. OW2 Sh. Abhay Kumar Jain has placed on record the survey report dated 09.01.1984 as Ex. OW2/1.
18. OW3 Sh. Prem Kumar Nagi has deposed in his evidence that he had purchased the property from Ramesh Chand Verma, but he does not remember the date, month or the year. He further deposed that there were two shops in that property with the tenants, one shop was in Page 13 of 50 the possession of Sh. Kazor Mal and other shop was with Mr. Sardarji whose name and particulars he does not know. He further deposed that the said Sardarji had vacated the shop and handed over the same between 198384, but date and month he does not remember and that shop was given to Sh. Rampal on rent between 198384, the date or month he does not know. He further deposed that rate of rent was about Rs. 25/ per month and he used to issue rent receipts to Rampal Singh always for the rent received from him. He further deposed that rent receipts already exhibited as Ex. OW1/1 & 2 bears his signature at point A. He has further deposed that in the year 1984 he had sold the property to Smt. Chhoti Devi and had given all the documents to her. He has also placed on record the certified copy of the Will dated 15.11.1984 executed by him in favour of Smt. Chhoti Devi as Ex. OW3/1 and the certified copy of the receipt dated 19.07.1983 issued by Sh. Ramesh Chand Verma as Ex. OW3/2.
19. OW4 Sh. Mukesh Bhardwaj who is LDC from Health Deptt, MCD, South Zone, Green Park, New Delhi has deposed in his evidence that his father Sh. C.P. Sharma who was Zonal Inspector (Property Tax) in MCD expired on 31.05.1984 and he can identify the signature of his father. He has further deposed that document Ex. Page 14 of 50 OW2/1 bears the signature of his father at point encircled 'A'.
20. On the other hand, DH has examined her son and attorney Sh. Om Prakash as DHW1 who filed his evidence by way of affidavit Ex. DHW1/A in which he has deposed as per the averments made in the reply to the objections. He has also placed on record the copy of Register of the Food and Civil Supplies showing the name of Smt. Surinder Kaur as Ex. AW2/1, copy of passbook in the name of Smt. Surinder Kaur as Ex. AW2/2 and copy of cancellation order of license in the name of Smt. Surinder Kuar as Ex. AW2/3. He has also placed on record the copy of plaint filed by the objector Sh. Ram Pal Singh against Sudershan Kumari and others wherein the DH had been arrayed as defendant no. 4 which is Ex. DHW1/X.
21. Apart from the evidence led in the objections which has been adopted by both the parties, the petitioner had also examined Smt. Sudershan Kumari as AW1 in the eviction petition u/s 14 (1) (b) of DRC Act as AW1, but she did not appear for her cross examination and hence her evidence cannot be considered.
22. Sh. Dhani Ram was examined as AW2 who had brought the register to prove that Smt. Surinder Kaur had deposited the security amount for FPS No. 2414.
Page 15 of 50
23. The petitioner has also examined Sh. N. K. Saxena as AW3 and Sh. R.K. Meena as AW4 to prove the inspection book of FPS as Ex. AW3/1. Sh. Joginder Kumar was also examined by the petitioner who has again been shown as AW4, but he did not turn up for his crossexamination and hence his evidence cannot be considered.
24. I have heard the Ld. Counsel for the parties. I have also gone through the written arguments filed by both the parties and perused the record carefully.
25. The Ld. Counsel for the objector has vehemently contended in the written arguments that it has to be adjudicated upon as to who was defacto owner/landlord of the premises in question in 1983 i.e. the year in which the objector claims that erstwhile tenants had surrendered their tenancy. He further contended that it has to be adjudicated upon that when and from whom the DH has acquired the ownership/title over the premises in question. He submitted that premises in question was sold by Smt. Sudershan Kumari in 1979 to Sh. Ramesh Chand Verma on the basis of customary documents i.e. Agreement to Sell, Will, Power of Attorney, Indemnity Bond, Affidavit etc. who again on the basis of the aforesaid customary documents sold the premises to Sh. Prem Kumar Nagi in the year 1983 and ultimately in 1984 Sh. Prem Page 16 of 50 Kumar Nagi executed the documents dated 15.11.1984 transferring the ownership rights in favour of Smt. Chhoti Devi, petitioner/DH herein and a sale deed dated 21.04.1987 was executed by Smt. Sudershan Kumari in favour of DH/petitioner Smt. Chhoti Devi and as such the title of the DH/petitioner was perfected on execution of sale deed dated 21.04.1987. The Ld. Counsel for the objector has further submitted that a bare perusal of the sale deed dated 21.04.1987 shows that sale consideration was paid by Smt. Chhoti Devi to Sh. Prem Kumar Nagi who was a marginal witness in the aforesaid sale deed and as such it is proved that defacto owner/landlord of the premises in question in the year 1983 was Sh. Prem Kumar Nagi and he had inducted the objector in the suit premises after the tenancy was surrendered by the previous tenants in favour of Sh. Prem Kumar Nagi through objector.
26. On the other hand, the Ld. Counsel for the DH/petitioner has vehemently contended that Sh. Gurwak Singh was the original tenant in the premises in question and after his death; the tenancy has devolved upon his LRs namely Smt. Surinder Kaur, Sh. Ramesh Pal Singh and Smt. Gurinder Bedi. He further contended that the LRs of late Sh. Gurwak Singh namely Sh. Ramesh Pal Singh and Smt. Gurinder Bedi have sub let the suit premises to the objector in the year Page 17 of 50 1985. He further contended that present objections have been filed by the objector in most illegal manner to deprive the DH from reaping the fruits of decree passed u/s 14 (1) (a) of DRC Act in favour of the DH. He further argued that objector had earlier moved applications u/o 7 rule 11 CPC and U/o 1 Rule 10 CPC in which no such plea was taken by the objector that he had paid a sum of Rs. 1 lakh as pugree amount to Sh. Prem Kumar Nagi at the time of letting out the suit premises to him by Sh. Prem Kumar Nagi or that Sh. Prem Kumar Nagi had also issued rent receipts against the rentals paid by him and the aforesaid pleas were taken by the objector for the first time in the civil suit filed by him for declaration and injunction. The Ld. Counsel for the DH/petitioner has further contended that the tenancy was never surrendered by Sh. Ramesh Pal Singh and Smt. Guridner Bedi in favour of Sh. Prem Kumar Nagi and, therefore, question of fresh tenancy in favour of the objector does not arise. He further contended that no sale deed was ever executed in favour of Sh. Prem Kumar Nagi and as such Sh. Prem Kumar Nagi was not competent to create any tenancy in favour of the objector when he was not the owner/landlord of the premises in question. The Ld. Counsel for the DH/petitioner has further vehemently contended that the rent receipts placed on record by the Page 18 of 50 objector are forged and fabricated and the objector is an unauthorized and illegal occupant in the suit premises.
27. In view of the aforesaid pleadings of the parties, there is no dispute that property in question was originally owned by Sh. Amar Nath Bhardwaj who during his lifetime gifted this property to his daughter Smt. Sudershan Kumari. It is also not in dispute that DH/petitioner Smt. Chhoti Devi had acquired the ownership rights over the property in question by virtue of sale deed dated 21.04.1987 executed by Smt. Sudershan Kumari in her favour. However, the objector contends that property in question was sold by Smt. Sudershan Kumari in the year 1979 to Sh. Ramesh Chand Verma by virtue of customary documents i.e. Agreement to sell, Power of Attorney, Will, Affidavit, etc. who also in the middle of 1983 on the basis of the aforesaid customary documents sold the property to Sh. Prem Kumar Nagi. It was also alleged by the objector that said Sh. Prem Kumar Nagi had executed the customary documents in 1984 in favour of petitioner/DH Smt. Chhoti Devi transferring the ownership rights over the property in question in her favour, though sale deed was executed in 1987 in favour of Smt. Chhoti Devi when she persuaded Smt. Sudershan Kumari to execute Sale Deed directly in her favour. It was Page 19 of 50 further contended by the objector that in the sale deed, Sh. Prem Kumar Nagi was made a marginal witness and sale consideration was also paid by Smt. Chhoti Devi to Sh. Prem Kumar Nagi which clearly shows that Sh. Prem Kumar Nagi was the owner/landlord of the premises in question in the year 1983.
28. So far this aspect of the matter that Sh. Prem Kumar Nagi became the owner/landlord of the premises in question in the year 1983 by virtue of customary documents as per claim of the objector is concerned, the DH has denied the same. As per the DH, Sh. Prem Kumar Nagi never became the owner/landlord of the premises in question as no sale deed was ever executed in favour of Sh. Prem Kumar Nagi .
29. In order to prove his aforesaid contention that Sh. Prem Kumar Nagi became the owner/landlord of the premises in question in 1983 by virtue of customary documents, the objector has examined Sh. Prem Kumar Nagi as OW3. However, the testimony of OW3 in this regard is hazy. OW3 Sh. Prem Kumar Nagi stated in his cross examination that he does not remember if the sale deed in favour of Smt. Chhoti Devi was executed by Smt. Sudershan Kumari and he also does not remember that he had signed as a attesting witness in the sale Page 20 of 50 deed. He further stated that he does not have any document in respect of property in question and he has got no document in his power and possession regarding the property in question. He further categorically stated that he does not have any document by which he purchased the property in question. Voluntarily, he stated that he had given those documents when the property was sold, but he stated that he does not have copy of the document with him. He further stated that he did not get the property mutated in his name in the MCD record and also did not declare about the purchase of the property in the income tax authority. He further stated that he does not remember for what purpose the property in question was used and he also does not remember for how much consideration he purchased the property in question. He further stated that he does not remember which documents were got written when he purchased the property and which documents were got registered.
30. From the aforesaid testimony of OW3 Sh. Prem Kumar Nagi, it is clear that no documents of sale or purchase has been produced on record on the basis of which it can be said that Sh. Prem Kumar Nagi had purchased the property in question in 1983. He does not remember anything regarding the sale/purchase of the property in Page 21 of 50 question from Sh. Ramesh Chand Verma. He even does not remember that how much consideration amount was paid by him while purchasing the property or what type of documents were got executed when he purchased the property in question.
31. In as much as, OW3 Sh. Prem Kumar Nagi has placed on record the Will dated 15.11.1984 executed by him in favour of DH/petitioner Smt. Chhoti Devi as OW3/1 and receipt dated 19.07.1983 bearing the signature of Sh. Ramesh Chand Verma as Ex. OW3/2 by which he has paid Rs. 45,000/ to Sh. Ramesh Chand Verma to show that he purchased the property from Sh. Ramesh Chand Verma vide receipt Ex. OW3/2 and sold the same in 1984 to Smt. Chhoti Devi vide Will Ex. OW3/1. But, in the crossexamination, OW3 Sh. Prem Kumar Nagi states that he cannot read Ex. OW3/1. Voluntarily, he stated that except his signature in Hindi he does not know what is written on Ex. OW3/1. He further stated that he does not know in what reference Ex. OW3/1 is written and same is his reply regarding Ex. OW3/2. Even, he could not identify the signature on Ex. OW3/2.
32. As such, it is evident from the testimony of OW3 Sh. Prem Kumar Nagi that he has not been able to prove that he became the Page 22 of 50 owner of the property in question in 1983 by virtue of customary documents. However, it also cannot be lost sight that in the sale deed dated 21.04.1987 executed by Smt. Sudershan Kumari in favour of DH Smt. Chhoti Devi by which DH had acquired the title over the property in question, Sh. Prem Kumar Nagi was made a marginal witness. From the perusal of the sale deed dated 21.04.1987, it is also revealed that a sum of Rs. 35,000/ was paid by Smt. Chhoti Devi to Sh. Prem Kumar Nagi and it goes to substantiate the claim of the objector that Sh. Prem Kumar Nagi became the owner of the property in question in 1983 by virtue of customary documents through which he again transferred the title in favour of DH Smt. Chhoti Devi. Had Sh. Prem Kumar Nagi no concern with the property in question, then there was no justification in making him a marginal witness to the execution of the sale deed dated 21.04.1987 and also for payment of sale consideration of Rs. 35,000/ to him.
33. This claim of the objector is further fortified when DHW1 Sh. Om Prakash, attorney and son of the DH states in his cross examination that Ramesh Chand Verma was in possession of property bearing No. 438, Punjabi Bazar at the time of execution of sale deed dated 21.04.1987. He again states that possession was with Prem Kumar Page 23 of 50 Nagi and then states that there is some confusion and it might be either of the aforesaid two person. He further stated that he does not know who was in possession of the entire property No. 438 on that date but it was either with Ramesh Chand Verma or Prem Kumar Nagi. He further stated that he does not know whether Ramesh Chand Verma had given the possession to Prem Kumar Nagi or viseversa and he does not know in what capacity Ramesh Chand Verma and Prem Kumar Nagi were in possession of the aforesaid property. Even he could not affirm or deny the suggestion that no consideration was paid to Smt. Sudershan Kumari either in the year 1986 or in the year 1987. He also could not affirm or deny the suggestion that his mother acquired the property No. 438, Punjabi Bazar from Sh. Prem Kumar Nagi on the basis of the customary agreement to sell, power of attorney, Will, receipt etc. after paying the agreed sale consideration to him.
34. Apart from this, in the petition filed by the petitioner Smt. Chhoti Devi u/s 14 (1) (b) of DRC Act, she has categorically stated that she firstly purchased the property by means of an Agreement of Sale accompanied by Power of Attorney and by way of paying the full consideration amount. Meaning thereby, the DH/petitioner admits that though the sale of the property was perfected in the year 1987 vide sale Page 24 of 50 deed dated 21.04.1987, but she came into the possession of the property in question by virtue of customary documents in the year 1984 which is also the case of the objector. The petitioner has not placed on record the said documents on record to show that same has been executed by Smt. Sudershan Kumari in her favour.
35. In view of aforesaid discussions and evidence of DHW1, it appears that Sh. Prem Kumar Nagi came into the possession of the premises in question in the year 1983 and Smt. Chhoti Devi had acquired the title over the premises in question from Sh. Prem Kumar Nagi in the year 1984 on the basis of customary documents and the sale was ultimately perfected by virtue of sale deed dated 21.04.1987 executed by Smt. Sudershan Kumari in favour of DH/petitioner Smt. Chhoti Devi. Otherwise there was no reason to pay the entire sale consideration amount to Sh. Prem Kumar Nagi and to make him a marginal witness to the execution of sale deed dated 21.04.1987.
36. As per the objector, the basic question which is to be adjudicated upon is that who was the defacto owner of the property in question in 1983 and from whom and when DH/petitioner had acquired the title over the property in question. However, in my opinion, though from the foregoing discussions, it has come on record that Sh. Prem Page 25 of 50 Kumar Nagi came into possession of the property in question as owner in 1983 from whom the DH/petitioner has acquired the ownership rights over the property in question in 1984 and the sale was ultimately perfected in the year 1987 vide sale deed dated 21.04.1987, but it cannot be said to be determining factor where upon the controversy rests.
37. In the present case, it is not in dispute that Sh. Gurwak Singh was the original tenant in the suit premises under Smt. Sudershan Kumari and the said tenant died in the year 1975 and, thereafter, tenancy was devolved upon his legal heirs including his wife Smt. Surinder Kaur and children namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi. It is also not in dispute that Smt. Surinder Kaur also expired in 1980s who is survived by her children namely Sh. Ramesh pal Singh and Smt. Gurender Bedi and after the death of Smt. Surinder Kaur, the tenancy devolved upon them.
38. As per the DH/petitioner, the said tenants namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi have sub let the premises in question to the objector Sh. Ram Pal Singh between JanuaryMarch, 1985. On the other hand, the objector has claimed that the aforesaid tenants Sh. Ramesh Pal Singh and Smt. Gurender Bedi had surrendered their tenancy rights in respect of the premises in question in favour of Page 26 of 50 the then owner Sh. Prem Kumar Nagi in 1983 and, thereafter, a fresh tenancy was created by Sh. Prem Kumar Nagi in favour of the objector.
39. Section 109 of Indian Evidence Act provides as under:
" When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand or have ceased to stand, to each other in those relationships respectively, is on the person who affirms it."
40. In the present case, it is not in dispute that there was relationship of landlord and tenant between the petitioner/DH Smt. Chhoti Devi being subsequent purchaser and Sh. Ramesh Pal Singh and Smt. Gurender Bedi, being successorin interest of the original tenant Sh. Gurwak Singh. Since, the objector affirms that said relationship ceased to exist with the surrender of tenancy by the aforesaid tenants namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi in favour of Sh. Prem Kumar Nagi and, thereafter, fresh tenancy was created by Sh. Prem Kumar Nagi in his favour, which is disputed by the DH/petitioner, then the burden was upon the objector to prove the same.
41. As such, from the pleadings of the parties and evidence on record, two issues emerges out for determination : Page 27 of 50 i. Whether tenants namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi surrendered their tenancy rights in favour of Sh. Prem Kumar Nagi in the year 1983; and ii. Whether after the surrender of tenancy by the aforesaid tenants, a fresh tenancy was created by Sh. Prem Kumar Nagi in favour of the objector.
42. The onus to prove the aforesaid issues was upon the objector. In order to prove his case, the objector has examined himself as OW1 and stated in his evidence that he is in occupation of the property as a tenant of Prem Kumar Nagi who inducted him as a tenant and the certified copies of the rent receipts issued by Sh. Prem Kumar Nagi are Ex. OW1/1 & Ex. OW1/2. He further stated that tenancy was created in July, 1983 at a monthly rent of Rs. 25/. In the crossexamination, he stated that the possession of shop was given back to Prem Kumar Nagi by him on behalf of Gurender Bedi when he received a letter and a telephonic call. He further stated that he cannot tell the date, month of the year 1983 when he received letter from her or when he gave back to Prem Kumar Nagi. He further categorically stated that he has not filed the said letter on record. Voluntarily, he stated that there was no necessity of the Page 28 of 50 same. He further stated that no document or the paper was executed when he handed over the possession of the shop in question to Prem Kumar Nagi. He further stated that Ramesh Pal Singh had not given any writing to him regarding the surrender of this shop. He further stated that Gurender Bedi did not execute any document or attorney or authority letter for surrender of shop nor Ramesh Pal Singh gave any such authority or power of attorney.
43. From the aforesaid statement of the objector, it is clear that he is claiming that tenancy was surrendered by him to Sh. Prem Kumar Nagi on behalf of tenant Smt. Gurender Bedi in the year 1983 when he received a letter and telephonic call from her. But, no such letter has been placed on record by the objector as also admitted by him in his crossexamination. Nothing in writing has been placed on record by the objector to substantiate the aforesaid claim. In as much as, he categorically stated in his crossexamination that Ramesh Pal Singh, the other tenant in the suit premises had not given any writing to him regarding the surrender of the shop in question. Admittedly, after the death of Smt. Surinder Kaur, wife of original tenant Sh. Gurwak Singh, tenancy was devolved upon her two children namely Smt. Gurender Bedi and Sh. Ramesh Pal Singh. Therefore, if the version of the Page 29 of 50 objector that Smt. Gurender Bedi had written a letter to him for surrender of tenancy on her behalf is taken to be correct, then also it is clear from the aforesaid statement of the objector that he has not been able to prove the surrender of tenancy by another tenant Sh. Ramesh Pal Singh in favour of Sh. Prem Kumar Nagi.
44. Even the aforesaid version of the objector that tenancy was surrender by him on asking of Smt. Gurender Bedi in 1983 is not supported by the testimony of Sh. Prem Kumar Nagi to whom the objector claims the tenancy was surrendered. Sh. Prem Kumar Nagi who was examined by the objector as OW3 has stated in his cross examination that there was only one tenant Sardarji in the shop in question and there was no other tenant in the shop in question. He further stated that he cannot tell the name of Sardarji who was the tenant in the shop in question. He further stated that Sardarji had handed over the possession of the property in question to him in the year 1983, but he could not tell the month or the date on which the possession was handed over to him. He further categorically stated that no other person had surrendered or relinquished tenancy rights with respect to the shop in question except for Sardarji. He further stated that Sardaji was his tenant and no money was paid to said Sardarji for Page 30 of 50 vacating the shop. He further categorically stated that he had asked Sardarji to vacate the shop and on his asking he vacated the same. He further stated that he and Sardarji were only present at that point of time and nobody else was present.
45. From the aforesaid statement of the objector and Sh. Prem Kumar Nagi, it is evident that the testimony of both the witnesses are in sharp contradiction to each other. The objector claims that he had surrendered the tenancy on behalf of tenant Smt. Gurender Bedi in 1983 in favour of Sh. Prem Kumar Nagi. While, as per Sh. Prem Kumar Nagi tenancy was surrendered by one Sardarji in the year 1983 who was tenant under him and except said Sardarji no one else had surrendered the tenancy in respect of the shop in question in 1983. OW3 Sh. Prem Kumar Nagi also categorically stated that except him and Sardarji, no one else was present at the time when the tenancy in respect of the shop in question was surrendered. He even could not tell the name of the Sardarji who was the tenant in the shop in question. As such, from the aforesaid testimony of objector and Sh. Prem Kumar Nagi, even it is not ascertainable that who had surrendered the tenancy in respect of the shop in question in the year 1983.
46. It is also a material aspect of the matter that objector had Page 31 of 50 moved an application U/o 7 Rule 11 CPC in the eviction petition filed by the petitioner u/s 14 (1) (b) of DRC Act in which the objector has been impleaded as respondent no. 3 stating that the petition does not disclose the cause of action as he is tenant in the suit premises and the premises were taken on rent by him from Smt. Sudershan Kumari through her general attorney namely Sh. Prem Kumar Nagi and terms of the tenancy were also settled with Sh. Prem Kumar Nagi.
47. The aforesaid plea taken by the objector in the aforesaid application that he was inducted in the suit premises by Smt. Sudershan Kumari through her attorney Sh. Prem Kumar Nagi is in sharp contradiction to the plea taken by the objector in the present objections. Throughout the case of the objector in the present objections is that Smt. Sudershan Kumari had transferred her ownership rights in 1979 by virtue of customary documents in favour of Sh. Ramesh Chand Verma who in turn again in 1983 on the basis of said customary documents transferred the title over the premises in question in favour of Sh. Prem Kumar Nagi. It is further case of the objector in the present objections that Sh. Prem Kumar Nagi was the defacto owner/landlord of the premises in suit in 1983 who inducted him as a tenant in the premises in suit. It was never the case of the objector that Page 32 of 50 Smt. Sudershan Kumari was the owner and in possession of the premises in suit in 1983 when as per the objector fresh tenancy was created in his favour. But, the objector has taken a contradictory plea in the aforesaid application U/o 7 Rule 11 CPC that he was inducted as a tenant in the suit premises by Smt. Sudershan Kumari through her attorney Sh. Prem Kumar Nagi which is not the case of the objector in the present objections.
48. Not only this, there is further contradiction in the pleas taken by the objector in the aforesaid application and in the present objections. In the application, the objector has taken a plea that he is a direct tenant under Smt. Sudershan Kumari through Sh. Prem Kumar Nagi and the rent in respect of the tenancy premises stands paid upto June, 1989 by him to said Sh. Prem Kumar Nagi. But, in the present objections, it is not the case of the objector that he had paid the rentals in respect of the suit premises to Sh. Prem Kumar Nagi upto June, 1989. Rather, the case of the objector is that he had paid the rent for the period 01.07.1983 to 31.12.1983 and again for the period 01.01.1984 to 30.06.1984 to Sh. Prem Kumar Nagi for which said Sh. Prem Kumar Nagi also issued rent receipts which are Ex. OW1/1 and Ex. OW1/2. The objector has also claimed that DH/petitioner Smt. Chhoti Devi Page 33 of 50 came into the possession of the suit premises in 1984 having purchased the same from Sh. Prem Kumar Nagi on the basis of customary documents. Therefore, question of paying the rentals upto June 1989 to Sh. Prem Kumar Nagi as claimed by the objector in the application does not arise when said Sh. Prem Kumar Nagi ceased to be owner of the premises in the year 1984.
49. The objector had also moved an application U/o 1 Rule 10 CPC in the eviction petition filed by the petitioner U/s 14 (1) (a) of DRC Act for impleadment as a party in the said eviction petition claiming that he is independent tenant in the suit premises and as such a necessary party in the case. In the said application, the objector has not disclosed when the tenancy was created in his favour. It is also interesting to note that in none of the aforesaid two applications, the objector had taken any such plea that Sh. Prem Kumar Nagi became the owner/landlord of the property in question in 1983 on the basis of customary documents and said Sh. Prem Kumar Nagi had inducted him in the suit premises as a tenant and further that he had also paid a sum of Rs. 1 lakh to said Sh. Prem Kumar Nagi as pugree amount and the rent receipts Ex. OW1/1 and Ex. OW1/2 heavily relied upon by the objector were issued by Sh. Prem Kumar Nagi towards the rentals paid Page 34 of 50 in respect of the suit premises. The said plea was taken by the objector for the first time in the civil suit filed by him for declaration and injunction.
50. Had the objector been inducted as a tenant in the suit premises in 1983 by Sh. Prem Kumar Nagi, then he must have disclosed the aforesaid facts in the aforesaid two applications. Even the plea of the objector that he had paid an amount of Rs. 1 lakh to Sh. Prem Kumar Nagi as pugree amount at the time of letting out the suit premises is not supported by the testimony of Sh. Prem Kumar Nagi. In the crossexamination, Sh. Prem Kumar Nagi stated that he had not received a sum of Rs. 1 lakh either as tenant or as advance rent from Sh. Ram Pal Singh. He further categorically stated that no amount of premium or pagree was paid to him at the time of letting of the shop by Sh. Ram Pal.
51. There is further contradictions in the testimony of the objector and Sh. Prem Kumar Nagi when the objector stated in his crossexamination that he does not remember the date of July 1983 when talk of tenancy between him and Prem Kumar Nagi had taken place. He further stated that the tenancy was created on the next day of the surrender of the shop to Prem Kumar Nagi. This statement of the Page 35 of 50 objector is contradicted by Sh. Prem Kumar Nagi when he states in his crossexamination that shop remained vacant for a period of about 20 days to a month after the surrender of tenancy by one Sardarji. The factum of creation of tenancy in favour of objector Sh. Ram Pal in 1983 becomes further doubtful when Sh. Prem Kumar Nagi states that he cannot tell the date, month but it was in the year 199394 when the premises was let out to Sh. Ram Pal.
52. There is another significant aspect of the matter. The objector Sh. Ram Pal Singh was employee of Sh. Gurwak Singh, the original tenant who was running the ration depot in the suit premises. The objector has categorically stated that he is working in the shop since 196465. He further stated that he was working under Sh. Gurwak Singh and he worked under Gurwak Singh till 1983. He further stated that Gurwak Singh was having ration depot (FPS) and he was having a license from food & supply department in his name. He further stated that Gurwak Singh expired in 1974 or 1975 and after his death, ration shop was run by his wife Surender Kaur and license was transferred in the name of Surender Kaur who also expired in 1980 or 1982.
53. In this regard, DHW1 Sh. Om Prakash who is son and attorney of DH/petitioner Smt. Chhoti Devi also stated in his evidence Page 36 of 50 that Sh. Gurwak Singh was having a FPS license from Food and Civil Supplies Department and this license was subsequently transfered in the name of Smt. Surinder Kaur and this license continued till 1985. As per claim of DHW1 Sh. Om Prakash, the said license was ultimately terminated by Sh. S.P. Singh, the then Deputy Commissioner, Food and Civil Supplies after issuing a notice dated 09.07.1985 copy of which is Ex. AW2/3. He has also placed on record the copy of register of the Food and Civil Supplies showing the name of Smt. Surinder Kaur at Sl. No. 1575 as Ex. AW2/1 and copy of passbook in the name of Smt. Surinder Kaur as Ex. AW2/2 to show that till 1985 Smt. Surinder Kaur was having license for FPS in the suit premises.
54. The objector also could not deny the fact that license was terminated in 1985 vide legal notice dated 09.07.1985 as he stated in the crossexamination that he does not remember if he received a notice in July 1985 from Food & Supply department and whether he had appeared there in response to the notice. He further stated that a grocery shop was being run in July, 1985 at the shop in question and he does not know if the license of FPS shop was canceled in July 1985. He also stated that he does not remember if he appeared in the office of S.P. Singh, Deputy Commissioner, Food & Supply in July, 1985. Page 37 of 50
55. The aforesaid statement of the objector shows that he is feigning ignorance about issuance of notice Ex. AW2/3 by Food and Supply Department for cancellation of license in the name of Smt. Surinder Kaur and his appearance before the office of Deputy Commissioner, Food and Supply Department in July, 1985.
56. It is also to be noted here that in the application U/o 7 Rule 11 CPC moved by the objector in the petition filed u/s 14 (1) (b) of DRC Act, the objector has claimed that he is a tenant for the last so many years and his shop was registered in his name in January, 1985 under Shop & Establishment Act and he is doing the business of general merchant and soap selling business in the tenanted premises. The said plea taken by the objector in the aforesaid application falsifies the claim of the objector that he was inducted tenant in the suit premises in the year 1983 after the surrender of tenancy by the erstwhile tenants. Had there been surrender of tenancy by the erstwhile tenants and creation of fresh tenancy in favour of the objector in the year 1983, the FPS license in the name of Smt. Surinder Kaur would not have continued till July, 1985 and the objector would have got registered his grocery shop with Shop & Establishment Act immediately after being inducted as tenant by Sh. Prem Kumar Nagi in Page 38 of 50 1983. It is not believable that a prudent person would not take any steps for cancellation of the license of the ration shop which he is not carrying and would continue the shop registered with the Food and Supply Department when he has taken the shop on rent and has been running his own business. There is nothing on record to show that the objector has taken any steps for cancellation of license of ration depot till 1985. The aforesaid contention of the objector in the application that he got his shop registered with the Shop & Establishment Act in 1985 substantiates the claim of the petitioner that subtenancy was created in favour of the objector somewhere in JanuaryMarch, 1985.
57. Even there is contradictions in the testimony of the objector and Sh. Prem Kumar Nagi regarding the business being carried out in the premises in question. The objector has stated in his cross examination that license of the ration depot was being carried out by the original tenant Sh. Gurwak Singh and after his death by his wife Smt. Surinder Kaur. He further stated in his crossexamination that ration depot was closed in 1980 or 1982 and at the instance of Gurender Bedi, he had started the business of confectionery items, but he does not remember when he started this confectionery business which was stopped in 1983.
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58. While, OW3 Sh. Prem Kumar Nagi stated in his cross examination that the general store was being run in the shop. He further stated that he does not know if the FPS license had been obtained in respect of the shop in question and he does not know if the food and supply work was being done in the shop. He further stated that he does not know if the license was obtained from the FPS and renewed till the year 1985. He further stated that he does not know if shop in question was a ration shop till the year 1985. He further stated that he cannot say what work was being carried out in the shop in the year 1983 when he had seen the same.
59. It is highly improbable that a person who purchases a property will not have the knowledge about the work being carried out in the said property. From the aforesaid statement of Sh. Prem Kumar Nagi who as per the objector came into the possession of the property in question in 1983, it is clear that he does not know about the work being carried out in the shop in question. Sh. Prem Kumar Nagi even states in his cross examination that he had never seen Sh. Rampal Singh i.e. objector at the shop. He also stated that he does not know if Sh. Rampal Singh was working at the shop or not.
60. Further, though the objector has claimed that he had Page 40 of 50 surrendered the tenancy on behalf of erstwhile tenants namely Sh. Ramesh Pal Singh and Smt. Gurinder Bedi in the year 1983 in favour of Sh. Prem Kumar Nagi, but said tenants Sh. Ramesh Pal Singh and Smt. Gurinder Bedi had taken a contradictory plea in their written statement filed in the eviction petition u/s 14 (1) (a) of DRC Act that they have surrendered the tenancy in respect of the premises in question to Sh. Ramesh Chand Verma.
61. The objector has not examined the aforesaid two tenants namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi to prove his claim that tenancy was surrendered by them in favour of Sh. Prem Kumar Nagi in 1983 and he was authorized by Smt. Gurender Bedi to surrender the tenancy. The aforesaid two persons were the best witness who could have thrown light about the surrender of tenancy in favour of Sh. Prem Kumar Nagi. The examination of the aforesaid two person was also important in view of the plea taken by them in the written statement that they have surrendered the tenancy in favour of Sh. Ramesh Chand Verma. But, the objector did not take any steps to examine them nor any explanation came forward for their non examination by the objector.
62. The objector has also claimed that rent receipts were also Page 41 of 50 issued to him by Sh. Prem Kumar Nagi for the period 01.07.1983 to 31.12.1983 and again for the period 01.01.1984 to 30.06.1984 which are Ex. OW1/1 and Ex. OW1/2. The Ld. Counsel for the objector has vehemently contended in the written arguments that both the rent receipts Ex. OW1/1 and Ex. OW1/2 were duly proved on record and hence it is established that objector was inducted tenant by Sh. Prem Kumar Nagi in the year 1983 who also issued rent receipts against the rentals paid to him. However, in my considered opinion, even the rent receipts placed on record by the objector Ex. OW1/1 and Ex. OW1/2 could not be proved by the objector.
63. OW3 Sh. Prem Kumar Nagi who as per the objector had issued the aforesaid two rent receipts stated in his crossexamination that he does not remember for how much period he had realized the rent. He further stated that he does not remember how much amount was realized by him towards rent. He further stated that he had issued the receipt on two or three occasions. He further stated that he does not remember as to for what period he had issued the rent receipts to Sh. Ram Pal Singh. He further categorically stated in his crossexamination that he had issued the rent receipts to Sardarji who was tenant in the shop in question at a monthly rent of Rs. 25/. He further stated that Page 42 of 50 there was only one or two rent receipts which were given to said Sardarji. Though, it is not understandable to whom the witness is referring as Sardarji, yet it is not the case of the objector that he was ever known as Sardarji.
64. As such, when Sh. Prem Kumar Nagi does not remember the period for which he had received the rent and how much amount was received by him towards rent, more particularly when he remained owner of the premises for one year only and had issued one or two receipts, it cannot be said that the aforesaid rent receipts Ex. OW1/1 and Ex. OW1/2 stands proved in view of the aforesaid shaky and wavering testimony of Sh. Prem Kumar Nagi.
65. OW3 Sh. Prem Kumar Nagi has not only shattered the claim of the objector regarding surrender of tenancy in respect of the premises in suit when he stated in the crossexamination that one Sardarji had surrendered the tenancy to him in 1983, while as per the objector tenancy was surrendered by him on behalf of erstwhile tenants namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi, but he also claims to have issued the rent receipts to Sardarji. Further, as per claim of the objector he was inducted as tenant on the next date after surrender of tenancy by the erstwhile tenants. On the contrary, OW3 Page 43 of 50 Sh. Prem Kumar Nagi stated that the objector was inducted as tenant in the shop in question after 20 days from the surrender of tenancy as he stated that shop remained vacant for a period of about 20 days to a month after the surrender of tenancy by one Sardarji.
66. In view of foregoing discussions, it is clear that there are material contradictions in the testimony of objector and Sh. Prem Kumar Nagi. Though, the objector has examined Sh. Prem Kumar Nagi to prove his claim that tenancy was surrendered by erstwhile tenants namely Sh. Ramesh Pal Singh and Smt. Gurender Bedi to him and, thereafter, fresh tenancy was created in his favour by said Sh. Prem Kumar Nagi, but the testimony of Prem Kumar Nagi failed to support this claim of the objector.
67. OW3 Sh. Prem Kumar Nagi also goes to the extent in saying in his crossexamination that he does not remember that Smt. Gurender Bedi and Sh. Ramesh Pal Singh were tenants in the property. Voluntarily, he stated that he does not remember the name of the tenant in the shop. It does not appeal to the reason that a landlord/owner would not know the name of tenants under him in the property in question. Sh. Prem Kumar Nagi also states in his crossexamination that he does not know if the said tenants did not surrender or relinquish Page 44 of 50 their tenancy rights. This categorical statement of OW3 Sh. Prem Kumar Nagi entirely demolishes the case of the objector that the erstwhile tenants namely Smt. Gurender Bedi and Sh. Ramesh Pal Singh had surrendered their tenancy in favour of Sh. Prem Kumar Nagi in the year 1983.
68. The objector has also examined Sh. Abhay Kumar Jain, retired employee of MCD as OW2 who has placed on record the certified copy of the survey report dated 09.01.1984 as Ex. OW2/1 to show that objector Sh. Ram Pal Singh is lawful occupant/tenant in the suit premises. However, OW2 Sh. Abhay Kumar Jain has not been able to prove the document Ex. OW2/1 which is the survey report of the year 1984. He stated in his crossexamination that he does not remember as to when the survey Ex. OW2/1 was conducted. He further stated that he had not seen any document in favour of the person whose name has been mentioned in the survey report Ex. OW2/1. He further categorically stated that he had not seen any document in favour of Sh. Ram Pal Singh regarding his alleged tenancy. He further stated that he does not remember if any signatures of the owner of the property were obtained in the inspection book. He does not remember who had revealed the information to him as mentioned in the survey Page 45 of 50 report.
69. In view of aforesaid statement of OW2 Sh. Abhay Kumar Jain, it is evident that he has not been able to prove that status of the objector in the survey report Ex. OW2/1 was recorded as lawful tenant. Moreover, the said document Ex. OW2/1 i.e. the survey report also cannot be said to be duly proved as OW2 has categorically stated in his crossexamination that the file containing the copy of the survey report is a photocopy only and there is no original of the survey report in the file and same is not available in the department. He further stated that there is no other record except the photocopy on the record. Therefore, in the absence of original document, the information mentioned in survey report Ex. OW2/1 being a photocopy and the witness does not have any source of information mentioned in the survey report and hence cannot be said to be proved.
70. Even otherwise, a perusal of survey report Ex. OW2/1 shows that there is column under the heading Occupant/tenant below which the name of the objector finds mentioned and as such it in no manner prove that objector has been shown as tenant and it merely at the best proves the occupation or possession of the objector in the premises.
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71. The Ld. Counsel for the objector has vehemently contended in the written arguments that no suggestion has been given to the objector that the possession of the suit premises has been parted with or assigned to him by the respondents/JDs and further that the business dealing after 1983 were on behalf of Smt. Surinder Kaur or the JDs. In my considered opinion, there is no merit in this contention of the Ld. Counsel for the objector as a suggestion has been given to the objector in his crossexamination that Sh. Prem Kumar Nagi did not induct him as a tenant which was denied by him.
72. It is also contended by the Ld. Counsel for the objector that objector has not been suggested that he never surrendered the shop to Sh. Prem Kumar Nagi or that he was paying rentals to Ramesh Pal Singh and/or Gurinder Bedi or that he was their subtenant. Again, this contention is misconceived as objector was suggested that Smt. Gurinder Bedi never wrote a letter to him or she never asked him to surrender the shop at any point of time which was denied by him. The objector was also suggested that he was never a tenant in the shop in question and he is a subtenant, though same was denied by him.
73. The Ld. Counsel for the objector has also contended that the DH/petitioner has not examined Smt. Sudershan Kumari to prove Page 47 of 50 that Sh. Prem Kumar Nagi did not come into possession of the premises in 1983 or sale consideration was not paid to him and no suggestion has been given to Sh. Prem Kumar Nagi that he did not come into possession of the premises in 1983. In my considered opinion, the DH was not supposed to examine Smt. Sudershan Kumari as a witness as the onus to prove that Sh. Prem Kumar Nagi came into the possession of the premises in question in 1983 was upon the objector. As discussed already herein above that irrespective of the fact that Sh. Prem Kumar Nagi came into the possession of the premises in suit in 1983 as owner thereof by virtue of customary documents, the moot question remains as to whether tenancy was surrendered by the tenants Sh. Ramesh Pal Singh and Smt. Gurender Bedi in favour of Sh. Prem Kumar Nagi. Therefore, examination or nonexamination of Smt. Sudershan Kumari has no bearing on this controversy.
74. As per the objector the moot question which is to be decided in the present case is that who was the defacto owner in 1983 and from whom the DH had acquired the title over the premises in question. However, irrespective of the fact that DH came into the possession of the premises in question in 1984 through Sh. Prem Kumar Nagi as contended by the objector, the main question to be Page 48 of 50 decided was that whether the tenancy was surrendered by erstwhile tenants Sh. Ramesh Pal Singh and Smt. Gurinder Bedi and, thereafter, fresh tenancy was created in favour of the objector. The onus to prove the same was upon the objector.
75. In view of aforesaid discussions, I have no hesitation to hold that objector has miserably failed to prove that tenants Sh. Ramesh Pal Singh and Smt. Gurender Bedi had surrendered their tenancy in favour of Sh. Prem Kumar Nagi in the year 1983 and as a consequent thereto the question of creation of fresh tenancy in favour of objector by Sh. Prem Kumar Nagi in the year 1983 does not arise at all. Therefore, it is held that no tenancy was ever created in favour of the objector, and, therefore, the contention of the objector in the present objections that he is occupying the premises in question in his independent capacity as tenant is without any merit. Hence, the objections filed by the objector u/s 25 of DRC Act are hereby dismissed.
76. Admittedly, the objector is occupying the suit premises and as I have held herein above that there was no surrender of tenancy by the erstwhile tenants in favour of Sh. Prem Kumar Nagi and no fresh tenancy was ever created in favour of the objector, it leads to the irresistible conclusion that the objector is occupying the suit premises Page 49 of 50 as unauthorized occupant and as a necessary consequence it amounts to subletting of the suit premises to him by the erstwhile tenants. As such, the petition filed by the petitioner u/s 14(1) (b) of DRC Act stands allowed.
77. Accordingly, an eviction order is passed u/s 14 (1) (b) of DRC Act in favour of the petitioner and against the respondents in respect of the suit premises i.e. Shop No. 1 (Private) in property No. 438 (Khasra No. 14), Punjabi Bazar, Kotla Mubarkpur, New Delhi as shown in red colour in the site plan attached with the petition. No order as to cost.
A copy of this judgment be also placed in eviction petition filed by the petitioner u/s 14 (1) (b) of DRC Act.
Announced in the open court (Balwant Rai Bansal) on 30th April, 2012 ARC(South), Saket, New Delhi Page 50 of 50 Ex No. 89/2000 30.04.2012 Present: DH. Sh. Om Prakash in person. Son of the objector.
Vide my common judgment announced in the open Court, the objections filed by the objector U/s 25 of DRC Act are dismissed Put up on 20.07.2012 for further proceedings.
(B.R. Bansal)
ARC(South), Saket, New Delhi
30.04.2012
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E. No. 29/12
30.04.2012
Present: Petitioner Sh. Om Prakash in person.
Son of the respondent no. 3.
Vide my common judgment announced in the open Court, the eviction petition filed u/s 14 (1) (b) is allowed and an eviction order is passed in favour of the petitioner and against the respondents in respect of the suit premises i.e. Shop No. 1 (Private) in property No. 438 (Khasra No. 14), Punjabi Bazar, Kotla Mubarkpur, New Delhi as shown in red colour in the site plan attached with the petition. No order as to cost.
File be consigned to Record Room.
(B.R. Bansal) ARC(South), Saket, New Delhi 30.04.2012 Page 52 of 50