Delhi District Court
Parveen Jain vs Govind Lal Ors on 21 October, 2024
RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
IN THE COURT OF ARC-cum-CCJ-ACJ, SOUTH
DISTRICT COURTS COMPLEX, SAKET, NEW DELHI
PRESIDED BY: PARAS DALAL, DJS
RC ARC No. 5955/2016
[U/Ss. 14(1)(a),(b) & (j) DRC Act, 1958]
CNR No. DLST030000342013
Sh. Praveen Jain
S/o Late Sh. Mahavir Prasad Jain
R/o D-29, Vivek Vihar, New Delhi-110095
.........Petitioner
versus
1. Sh. Govind Lal
S/o Sh. Goda Ram
R/o Pvt. Shop No.3, Property No.883, Ward No.6,
Main Bazar Road, Mehrauli, New Delhi-110030
Also at: H.No.897/8, Mehrauli, New Delhi-110030
2. Sh. Anil Kumar Jain
S/o Late Sh. Mahavir Prasad Jain
R/o C/9-172, Yamuna Vihar, New Delhi-110053
.............Respondents
Date of Institution : 27.04.2013
Date of Arguments : 14.10.2024
Date of Pronouncement : 21.10.2024
JUDGMENT
Pages 1 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
1 The present petition has been filed by the petitioner seeking eviction of the respondent no.1 on grounds as envisaged under Section 14(1)(a), (b) & (j) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act, 1958). The respondent no.2 is proforma respondent being co-landlord and real brother of petitioner. The petitioner has averred in the petition that he is joint owner of undivided half equal share in respect of entire built up premises no.883, Ward no.6, situated at Main Bazar Mehrauli, New Delhi part of Khasra no. 1665(old) and 1151/3 (new) falling in Lal Dora, Abadi of village Mehrauli, New Delhi which included present built up shop with private shop no.3, facing main Bazar Road (hereinafter referred to as 'demised premises') and in between rented shop of Late Sh. Varinder (Sh. Chunni Lal) and Late Sh. Inder Mohan (Sh. Bhola Ram) measuring approximately 10'x12', presently is under occupation and use of sub-letee Mr. Anuj Khattar under name and style of M/s. Rachit Communication. The respondent no.2 is the real brother of petitioner and stated to be half owner of the above said tenanted premises.
2 The petitioners alleged that the property belonged to and was constructed by the ancestors of petitioner. A number of tenants, including Late Sh. Godha Ram, father of respondent no.1 were inducted as tenant by grandmother of petitioner and father of petitioner somewhere in year 1958-60. The petitioners further alleged that after the death of Sh. Paras Dass Jain, grandfather of the petitioner, his grandmother Smt. Gunwanti Devi became the owner of the property and was recorded owner in the MCD records since his father Sh. Mahavir Prasad Jain was minor at that time. The petitioner alleged that on coming of age, his father Sh. Mahavir Prasad Jain became owner of the tenanted premises until he died on 28.06.1990. Sh. Mahavir Prasad Jain was stated to have died intestate and hence his four legal heirs namely, Smt. Rupan Jain, Sh. Anil Kumar Jain (respondent no.2), Smt. Renu Jain; and Sh. Praveen Jain Pages 2 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
(petitioner) became the owners. Smt. Rupan Jain relinquished her share vide deed dated 29.10.1981 in favour of above three legal heirs. In a subsequent partition suit before the Hon'ble High Court of Delhi, the remaining three legal heirs of Sh. Mahavir Prasad Jain entered compromise and partition decree was accordingly passed wherein the tenanted premises came in joint equal half ownership of petitioner and respondent no.2 (both brothers S/o Mahavir Prasad Jain).
3 The petitioner further alleged that after the death of Sh. Mahavir Prasad Jain in 1980, both brothers had equal legal right to receive the rent from all tenants of their ancestral properties including the Late Sh. Godha Ram, predecessor father of respondent no.1 who was tenant in the said shop i.e. demised premises. The petitioner also alleged to have been pursuing his M.B.B.S. at Govt. Medical College when his father died on 28.06.1980 and hence he executed attorney vide document dated 17.07.1980 in favour of his brother/ respondent no.2 to manage and look after the inherited properties including the demised premises.
4 The petitioner specific to the present case alleged that Sh. Godha Ram, father of respondent no.1 was inducted as a tenant by his grandmother Smt. Gunwanti Devi and his father Sh. Mahavir Prasad Jain in demised premises for monthly rent of Rs.4.50/- without roof rights excluding electricity, water, house tax or any civil tax charges which is to be paid by respondent no.1 as per demand raised by the authorities concerned. The petitioner stated that Sh. Godha Ram had a tea stall and after his death, his son Sh. Govind Lal inherited the tenancy rights. The petitioner alleged that the respondent no.2 was receiving above rent on his behalf as well as on behalf of petitioner and the said fact was very well in knowledge of Sh. Godha Ram and respondent no.1.
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RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
5 The petitioner alleged that in the year 2010, when the respondent no.1
defaulted in payment of rent, he enquired from the respondent no.1 who was very hostile and refused to pay the rent. The petitioner alleged to have visited the tenanted shop, however found that the said shop was closed and he came to know about forgery on 19.10.2012 qua some property documents of the demised premises. The petitioner filed criminal complaint and also one Civil Suit no.48/2008 titled Mrs. Veena Sharma v. Shree Kumar (Sudesh Kumar) & Ors. Wherein the SHO Mehrauli is co-defendant.
6 The Petitioner further alleged to have visited the tenanted premises on 19.10.2012 and found M/s. Rachit Communication carrying out business in his individual capacity and Mr. Anuj Khattar claimed to be sole-proprietor. Petitioner enquired from Mr. Anuj who stated that the respondent no.1 is not coming to the property and he was doing business from the tenanted premises and he also shared the number of respondent no.1. Petitioner served notice dated 21.01.2013 terminating the tenancy w.e.f. 01.02.2013 and also sought payment of legally recoverable rent @Rs.15/- per month of three years prior to the date of receipt of legal notice. The petitioner has thus preferred the present petition for non-payment of rent as well as for illegal sub-letting. The petitioner has also annexed site plan and photographs of the property to plead that the demised premises has been totally damaged structurally and new unauthorised, illegal construction has been carried out after the service of legal notice to the respondent no.1. The petitioner stated that mere comparison of photographs of tenanted premises taken at the time of sending legal notice and at the time of filing of petition proves the submission made herein respect of sub-letting, structure damage of the shop. Hence the prayer is to allow the present petition Pages 4 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
on all three grounds of non-payment of rent, creation of sub-tenancy as well as causing substantial damage.
7 The respondents were issued notice of the petition and respondent no.2 was proceeded ex-parte on 04.01.2014. Respondent no.1 upon entering into appearance, they filed written statement. The respondent no.1 denied landlord- tenant relationship between him and petitioner. The respondent no.1 took support of petition that petitioner never received any rent for himself and stated that even the petitioner was not aware as the premises qua which eviction is sought. The respondent no.1 stated that petitioner never received any rent and even two copies of rent receipts were not issued by him. The respondent no.1 sets up his own title claim over the tenanted premises and stated that respondent no.2 sold the tenanted premises to respondent no.1 in the year 1997 through GPA sale and subsequently, the respondent no.1 sold the said property to his wife Smt. Prem on 21.10.2010 through registered sale deed. The respondent no.1 claimed exclusively title to the tenanted premises since 1997 and of his wife since 2010. The respondent no.1 thus claimed to be exclusive owner of the tenanted premises through respondent no.2 and hence claimed that the petitioner not being owner, is not entitled to seek eviction under the provisions of Delhi Rent Control Act.
8 As regards the averments in the petition, the respondent no.1 replied confirming his preliminary submission, vehemently contesting the ownership claim of the petitioner. The respondent no.1 stated to be exclusive owner in possession of the tenanted premises since the year 1997. The respondent however, has not contested the claim of being tenant before the year 1997 and has also not stated about the last paid rent and lawful rent payable, if any before the year 1997. The respondent no.1 further stated that the two photocopies of the Pages 5 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
rent receipt were issued by the respondent no.2, one of year 1988 and other is undated, further which shows that respondent no.2 was the landlord and he has sold the property vide documents of year 1997. The respondent no.1 denied all the averments of the petitioner qua the previous ownership of Sh. Paras Dass Jain or Sh. Mahavir Prasad Jain as well as subsequent joint ownership of petitioner and respondent no.2. The respondent no.1 in his pleadings thus has not stated specifically about earlier tenancy prior to year 1997, lawful rent as well as last paid rent, present possession being with him, his wife or with Mr. Anuj Khattar.
9 The petitioner filed rejoinder taking the very same stand that respondent no.1 has been unambiguous, made positive admission and also gave evasive denial. The petitioner also filed previous ownership records dating back to year 1987. The petitioner stated that the respondent no.1 in absence of specific denial in written statement in respect of status of sub-letee of 'Rachit Communication' run independently by Mr. Anuj Khattar, has infact admitted creation of sub- tenancy without permission of the landlord. The petitioner further stated that the respondent no.1 has admitted the location, identification of tenanted premises since he is claiming ownership of the same tenanted premises and in the same sequence the receipt of legal notice dated 21.01.2013 is admitted. The petitioner further stated that the respondent no.1 has not setup any independent title. The GPA sale of year 1997 is nothing in the eyes of law and infact the respondent no.1 has not proved any previous title of respondent no.2 to sell the tenanted premises.
Petitioner's evidence 10 Petitioner examined himself as PW1 however, before that he called formal witnesses to prove documents. Sh. Dinesh Kumar was called as PW2 and Pages 6 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
he came from DC Office, Gurgaon, Haryana to exhibit Ex.PW2/1 (OSR) which is sale deed Vasica no.53 dated 01.04.1897, Jilad no.39, page no. 296 to 301 Bainama for Rs.1,000/-. PW3 is Sh. Shivaji, record attendant, Government of NCT of Delhi Department of Delhi Archives to prove General Power of Attorney bearing registration no.5720 in additional book no.4, volume no.766, on pages 27 to 29 dated 23.07.1980. PW4 R.S. Yadav was also examined to prove the site plan Ex.PW4/1. PW5 Sh. Sushil Kumar Kala, Judicial Assistant from RKD (Original) Branch, Hon'ble High Court of Delhi exhibited record of suit no.236/85 titled Smt. Rupan v. Anil Kumar Jain. PW6 Sh. Aziz-ur-Rehman was called to prove the translation of Urdu to English of Ex.PW2/1 who exhibited the English translation as Ex.PW6/2. PW7 was another witness namely Sh. M.K. Verma, Zonal Inspector, Property Tax Department, SDMC, South Zone who brought the file of assessment of property tax no.883/06, Ward no.6, Mehrauli, New Delhi-30 and he could only show copy of survey record which is now Mark P-7.
11 Petitioner then examined himself as PW1 and filed affidavit Ex.PW1/1 in his examination in-chief wherein he has reiterated and reaffirmed the contents of petition on oath. He has relied upon the following documents:- Ex.PW1/2 (colly) certified copy of title deed and english translation; Mark P7 copy of survey report of MCD; Ex.PW5/1 copy of partition decree; Ex.P3/1 certified copy of general power of attorney dated 17.07.1980; Ex.PW4/1 site plan; and Ex.PW1/7 (Colly) (OSR) copy of legal notice dated 21.01.2013. PW1 was cross examined wherein he answered that address of the suit property is 883, Ward No.6, Main Bazaar, Village Abadi, part of Khasra No.1665 (Old) and 1151/3 (New) Mehrauli, New Delhi and voluntarily added that the tenanted premises was part of the above said property. PW1 further stated that property from Sh. Paras Dass Jain devolved upon his grandmother Smt. Gunwanti Devi as was Pages 7 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
recorded in MCD Survey Report Mark P7 and admitted that there was no document to show ownership of Mahavir Prasad Jain qua the tenanted premises. PW1 further answered that tenanted premises was part of partition decree Ex.PW5/1 and he referred to serial no. xii of the partition decree. PW1 stated that the address of suit property is a portion of property no.883, having address at Ward No.6, Main Bazar, Mehrauli, New Delhi. PW1 then was specifically question as to the Ward number of the property mentioned in Ex.PW5/1 and he stated that in the partition decree the Ward number has been mentioned as 4 instead of 6. PW1 stated the above to be a typographical mistake however stated that no application has been made seeking correction of the said typographical mistake. PW1 stated that he received no rent from respondent no.1, however voluntarily added that he had appointed his brother respondent no.2 as his attorney without power of sale, to receive the rent on his behalf from respondent no.1 and issue the rent receipts to respondent no.1 since the death of his father. The respondent no.1 also relied on photocopy of rent receipts. PW1 stated that he had executed General Power of Attorney and there was no specific attorney qua the tenanted premises. PW1 was specifically asked that respondent no.2 was exclusive owner of the tenanted premises, however PW1 denied and stated that respondent no.2 was never an exclusive owner of the tenanted premises and documents executed by respondent no.2 was not valid. PW1 reiterated that he and his brother/ respondent no.2 are the owner of the suit property however he did not have any document to show the same. PW1 further stated that one Civil Suit was also pending qua the tenanted premises and upon being shown a document, admitted the certified copy of Suit no. 205478/2016 as Ex.PW1/D1. PW1 upon being asked about the sale and suit, stated that he did not know that tenanted premises was sold by respondent no.1 and stated that suit was filed since the respondent no.2 had no title to sell the tenanted premises and the documents executed were without his permission, illegal and not binding on Pages 8 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
him. PW1 further stated that he had no knowledge about the execution of document of purported sale by respondent no.1 and he came to know about the same when respondent no.1 filed application under Order VII Rule 11 CPC in the present petition. PW1 then admitted that he had given only one notice dated 21.01.2013 and admitted that there was no notice given to respondent no.1 qua joint ownership of the tenanted premises.
Respondent's evidence 12 Respondent no.1 examined himself as RW1 and exhibited his evidence by way of affidavit as Ex.RW1/A and relied on Ex.RW1/1 (OSR) copy of registered general power of attorney executed by Anil Kumar Jain/ respondent no.2; and Ex.RW1/2 (OSR) copy of registered sale deed. RW1 in his cross examination answered that he is only known as Govind Lal and have no alias. RW1 admitted that his father was tenant in the shop since 1960, however he could not state the exact date. RW1 could not tell who was the landlord of his father however voluntarily stated that he might be Anil Kumar Jain may be his father. RW1 again stated that in the rent receipt it used to mentioned that Sh. Mahavir Prasad Jain and Anil Kumar Jain. RW1 when confronted with rent receipt dated 31.07.1969 bearing no.688 which is Ex.RW1/P1 (OSR) and admitted that it pertains to his father and was in respect of the tenanted premises. In same sequence the rent receipt dated 29.01.1969 bearing no.957 was admitted and exhibited by RW1 as Ex.RW1/P2 (OSR) and rent receipt dated 20.06.1971 bearing no.844 as Ex.RW1/P3 (OSR). RW1 further stated that he never went to the premises of Sh. Mahavir Prasad Jain and could not say if Mahavir Prasad Jain had two sons. RW1 stated that he only knew Sh. Anil Kumar Jain to whom he used to pay rent. RW1 stated that he would have to search for rent receipts and stated that he paid rent to Sh. Anil Kumar Jain uptill 1997, whereafter he discontinued only because he purchased the property. RW1 further stated that he Pages 9 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
was not in possession of the property and he had handed over the possession of the property to his wife Smt. Prem and did not receive any rent from her. RW1 further stated that he had not seen any title document of Sh. Anil Kumar Jain being exclusive owner of the tenanted premises and stated that Sh. Anil Kumar Jain only executed an Agreement to Sell, Receipt, Affidavit and Will in his favour and answered that he had not filed any civil suit against Sh. Anil Kumar Jain. RW1 further deposed that he had received consideration from Smt. Prem, however no such amount was handed over to Sh. Anil Kumar Jain. RW1 further answered that he had not sent any notice to Praveen Jain but admitted that he received notice of demand of rent from petitioner and paid no rent to petitioner. RW1 further stated that he repaired the tenanted premises in the year 1997.
13 Respondent also examined Ms. Sandhya, senior assistant, Sub-Registrar- V, Mehrauli who brought the certified copy of sale deed of Mr. Govind Lal in favour of Mrs. Prem (wife of Sh. Govind Lal) vide registration number 18,890 in Book no.1, Vol. no. 10,632 on page no. 179 to 185 dated 23.10.2010 which is Ex.RW2/A. Respondent also examined Ms. Manju, Senior Assistant, Office of sub-Registrar I, Kashmiri Gate, New Delhi to exhibit the Registered GPA executed by Sh. Anil Kumar Jain S/o Late Sh. Mahavir Prasad Jain vide registration no. 14411 volume no.4382 pages 155 to 157 book IV which is Ex.RW1/1 (OSR).
14 Arguments advanced by learned counsel for both the petitioner considered and records have ben perused.
Appraisal of Evidence 15 Before appreciating evidence, the provisions under which the present petition has been filed is required to be stated. The petition has been filed for Pages 10 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
eviction of the respondent no.1 on the ground of 'non-payment of legally recoverable rent' [Section 14(1)(a)], 'sub-letting without permission/consent of the landlord' [Section 14(1)(b)] and 'tenant having caused or permitted to be caused substantial damage to the premises' [Section 14(1)(j)]. Each of the ground stated requires individual appreciation of evidence in the present case.
Identification of the tenanted premises and landlord-tenant relationship 16 A primary issue in the present petition is identification of tenanted premises. The determination of this issue is pivotal before discussing the prayer as to each ground of eviction. The issue arose for identification of demised premises, since the respondent no.1 claimed to be owner of the property since 1997 which he sold to his wife in the year 2010. Although the petitioner placed certain documents to support his claim of joint title, the respondent no.1 challenged the physical existence of tenanted premises in Ward number as stated by the petitioner. Thus the fact needs to be established if the petitioner has been able to prove the site as well as tenanted premises.
17 The petitioner relied on one registered sale deed of the year 1897 and certified copy of the same was proved by PW2 i.e. Ex.PW2/1. The said registered sale deed is in Urdu language and hence Petitioner sought to translate the same into English language. The translation was carried out by PW6 and his true copy of translation is Ex.PW6/1. The respondent side sought to question the translation and put a suggestion that he had not translated the copy correctly, however mere suggestion cannot disprove the translation. The respondent could have proved on record a correct translation. From the record PW6 produced his certificate of empanelment Ex.PW6/2 and PW6 being an independent witness, this Court finds no impediment in reading the translation Ex.PW6/1 of Ex.PW2/1 as correct. Had there been discrepancies and wrong translation, the Pages 11 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
same ought to have been confronted by the respondent side or atleast a different and correct translation been proved. Mere general questioning and suggestion that translation being not correct, would not prove the challenge of the respondent side. This Court states that petitioner is entitled to benefit of Section 90 Evidence Act, wherein the certified record of year 1897 carries presumption of being duly executed and attested. The entire sale deed is silent as to any specific number of the property qua which the document has been executed. Quite understandably, the executed document is of 1897 and property is of Mehrauli wherein the property has been described in great details alongwith all physical attributes. The respondent side sought to question PW6 about translation and there being no signatures of parties present then. Firstly, there is presumption which exists of Section 90 Evidence Act and it has to be seen that registration is of year 1897 when Registration Act 1908 was not in effect. The petitioner side during arguments quoted the provisions of Registration Act, 1877 and also drew the attention of the Court to the circumstances of year 1897 wherein the photocopy machine was not available. The document executed between the parties would have been taken to the Registrar/ Sub-Registrar, who would record the contents of the document in the given Register and in the year 1897 there would be no copy of the original to be taken on record. The said procedure is the reason for the questioning of the translator/ PW6 about signatures of the parties in the certified copy. Necessarily the deeds would have been executed by the parties and when the same would have been produced before the Sub-Registrar/ Revenue Authority, they would write the contents and not take signatures of parties in original on the register. Although the translation shows the exact terms of deeds including having been signed by the parties and even the Registrar has noted that there were signatures on the deed which was produced for registration. This Court finds that the respondent no.1 has failed to rebut the presumption of genuineness of the certified copy Ex.PW2/1 and Pages 12 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
translation of Ex.PW6/1 being correct and genuine. The petitioner however cannot exactly establish the identity of the tenanted premises from the said sale deed of the year 1897 since the physical attributes and demarcation of the property has been since changed in more than a century.
18 The petitioner has since beginning stated that the tenanted premises is part of ancestral property which has come to share of himself and respondent no.2 (his brother) share from Sh. Paras Dass Jain, through his wife Smt. Gunwanti Devi and their father Sh. Mahavir Prasad Jain. The petitioner claimed that Sh. Mahavir Prasad Jain had four children, of which petitioner and respondent no.2 are brothers and they had two sisters Smt. Rupan and Smt. Renu. Smt. Rupan relinquished her share in favour of her three siblings and there was family partition before the Hon'ble High Court of Delhi. The family compromise partition deed is Ex.PW5/1 wherein the petitioner claimed that the tenanted premises is part of property mentioned at serial no. xii as two storey built up building Municipal no.883, Ward IV, Mehrauli, New Delhi. The respondent no.1 challenged the description of this property that the compromise decree was in respect of property in Ward IV, whereas tenanted premises is part of property in Ward VI. The respondent no.1 further stated that petitioner during cross examination only referred to this serial no.xii in the compromise decree to refer to the whole property of which tenanted premises is a part, however he never applied for any correction of Ward number of the Hon'ble High Court of Delhi. The petitioner has stated that it was a typographical error and self understood, therefore never sought to be corrected, however petitioner side claims that at no point in time this defence was taken in the pleadings by the respondent no.1 and any typographical error cannot vitiate the entire trial as well as other documents presented. This Court sees substance in the arguments of the petitioner side. The ward number is written in roman numericals and there can very well be a case of Pages 13 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
typographical error in mentioning VI as IV. Besides, the petitioner has never claimed that there is another property with same number 883 in Ward no.IV belonging to him or his brother having same khasra numbers. The respondent no.1 has also not made effort to show that there are two different properties in Ward IV and Ward VI having same number as 883. It very well appears to be genuine error in mentioning the ward no. in the compromise decree and the compromise decree seems to be qua property no.883, Ward VI, Mehrauli of which the tenanted premises is a part.
19 Be that as it may, there is also sufficient reasons given to this Court by the respondent no.1 to believe the case of petitioner qua identification of case property. The respondent no.1 has not disputed the site plan and photographs of the property. There has been no specific denial of existence of Mr. Anuj Khattar and M/s Rachit Communications in the tenanted premises. The respondent no.1 has also not stated in his pleadings about earlier tenancy, the lawful rent and last rent paid. The respondent no.1 however during his cross examination really proved the case of petitioner. In his cross examination dated 13.02.2013, the respondent no.1 as RW1 admitted three rent receipts Ex.RW1/P1 to Ex.RW1/P3, he also admitted (without some hesitation) that his father was original tenant of Sh. Mahavir Prasad Jain. The respondent no.1 thus has admitted that tenanted premises was let out to his father by Sh. Mahavir Prasad Jain and predecessor in interest of petitioner. At this juncture, the belief of this Court is fructified that petitioner has by balance of probability proved that the tenanted premises is part of property no.883, Ward No.VI, Mehrauli, New Delhi. The tenanted premises was let out to predecessor in interest of respondent no.1 by predecessor of petitioner and respondent no.2. The respondent no.1 thus cannot take an advantage of practices of 1897 while registration or of typographical error of compromise decree to dispute the identity of the tenanted premises. Had the Pages 14 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
respondent no.1 really presented separate documents of previous owners and previous chain independent of petitioner's claim, it could have been shown that tenanted premises never belonged to petitioner. The respondent no.1 has thus really taken a false stand that petitioner has nothing to do with tenanted premises.
20 For a moment it may be presumed that since petitioner was not residing in the locality, he was not personally known to respondent no.1. However, respondent no.1 being resident of the Mehrauli, it is improbable to presume that his father never told him that the tenanted premises was lent out to him by predecessor in interest of petitioner and respondent no.1. The respondent no.1 has thus by means of clever drafting and taking advantage of oral agreement of tenancy, tried to challenge the landlord-tenant relationship. This Court is thus of firm opinion that respondent no.1 knew all along that tenanted premises was lent out to his father by predecessor in interest of petitioner and respondent no.2 and taking advantage that petitioner was not regularly visiting the tenanted premises, he tried to get the property transferred from respondent no.2 without checking any previous chain or title of respondent no.2. Respondent no.1 in his cross examination admitted that he did not check any previous chain or title of respondent no.2.
21 Since the identity of the property is established and there is neither any dispute qua family pedigree of petitioner and respondent no.2 upto Sh. Paras Dass Jain through Smt. Gunwanti and Sh. Mahavir Prasad Jain nor there is dispute of family pedigree of respondent no.1 through upto his father Sh. Godha Ram. Smt. Gunwanti Devi (grandmother of petitioner) and Sh. Mahavir Prasad Jain (father of petitioner) had inducted Sh. Godha Ram as tenant and as tenancy devolved upon respondent no.1 through succession, the property also devolved Pages 15 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
upon petitioner and respondent no.2. Thus, respondent no.1 continues to hold the position of tenant against petitioner and respondent no.2, it is now to be seen, what is the stand of respondent no.1. The respondent no.1 stated that he purchased the property from respondent no.2 in the year 1997 vide registered GPA and then sold the same vide registered sale deed to his wife Smt. Prem in the year 2010. The respondent no.1 in his cross examination also stated that he has parted with the possession of the premises to his wife, however there is no specific denial as to the averment of possession of Mr. Anuj Khattar/ M/s. Rachit Communication over the demised premises.
22 It is to be borne in mind that Section 116 Evidence Act denies the opportunity to tenant to question the title of landlord as long as the tenancy exists. The Rent Controller is thus not to delve into the claim of title of tenant if acquired subsequently. It is also a settled law that until all landlord transfers their share in the tenanted premises to the tenant, he continues to be a tenant. This law is settled by the judgment of the Hon'ble Supreme Court of India in Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. AIR 2005 SC 2857. Even if all landlord but one has not transferred title to the tenanted premises, the tenant shall remain in that position. In the present case, even if respondent no.2 has validly transferred his share in the tenanted premises, the respondent no.1 continues to be a tenant. In this case, we have seen that petitioner and respondent no.2 have joint ownership of undivided equal share in the tenanted premises and petitioner had only executed General Power of Attorney without sale in the year 1980 in favour of respondent no.2. The registered document Ex.PW3/1 is general in nature for management of affairs of and related to the properties, however it is specific that no right to sell has been attorned on respondent no.2. Ex.PW3/1 explicitly as well as by written terms provide for the same. The respondent no.1 still claims that the respondent no.2 vide General Pages 16 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
Power of Attorney Ex.RW1/1 (OSR) sold the tenanted premises to him. It is settled law that GPA sale is not valid form of transfer of property and celebrated judgment of Suraj Lamp case; AIR 2012 SC 206 can be quoted here. Although the GPA in the present case is of year 1997, however the respondent no.1 cannot be said to be illiterate or in ignorance of law. The respondent no.1 further relied on Ex.RW1/2 to state that he sold the property through registered sale deed to his wife Smt. Prem in the year 2010. The registered sale deed is thus also prior to the judgment of Suraj Lamp case. Although, the ignorance of law is not excuse, however in the present case the respondent no.1 not only knew about transfer of property vide registered sale deed, he did not even know the consequences of being an attorney of respondent no.2. The respondent no.1 was also appointed as General Power of Attorney by respondent no.2, however the respondent no.1 sold the said property and said that in his cross examination that he kept all the sale consideration and there was no requirement to give the same to the respondent no.2. The respondent no.1 further relied on registered sale deed of 2010 Ex.RW1/2 to show that he sold and parted with possession of the property in favour of Smt. Prem (his wife). The respondent no.1 in the said sale deed mentioned that he was acting as attorney of respondent no.1 as per registered GPA Ex.RW1/1, however in his cross examination stated that he kept the entire sale consideration. There is genuine doubt as to valid execution of GPA Ex.RW1/1 and how respondent no.1 acted as attorney of respondent no.2. This Court would further refrain from commenting on the execution of these GPA and sale deed, since the said issue is under consideration before the Competent Court of Civil Jurisdiction. The issue was merely touched upon by this Court for the defence of the respondent no.1 that he had independent title over the tenanted premises as against the petitioner.
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23 The respondent no.1 also argued that rent receipt by respondent no.2
mentioned the term 'Malik Jaidad' and as such the respondent no.2 receiving rent from respondent no.1 represented that he was the only owner of the demised premises. The respondent no.1 also questioned the time line of the present case. It was argued that petitioner has not proceeded against his brother for forgery and cheating and this shows that all along he was well versed with factum of sale of the demised premises. The same cannot be ground to defend the present case. Any proceeding or case against respondent no.2 by petitioner or respondent no.1 for forgery or cheating is separate cause of action. As regards the respondent no.1 he was to check whether the respondent no.2 was sole and exclusive owner of the demised premises. The respondent no.1 cannot even claim any title through the GPA executed by respondent no.2 even if registered. The respondent no.1 also cannot defend the whole case based on term on the rent receipt as 'Malik Jaidad' as same does not show that he was exclusive and sole owner of the property in question, and before any alleged sale, the duty of the respondent no.1 was to satisfy himself about the title of respondent no.2. Any defect in title of the respondent no.2 shall pass upon the respondent no.1.
24 To sum up the discussion above, this Court by preponderance of probability is of the opinion that tenanted premises was owned by predecessor in interest of petitioners and same devolved by succession as well as compromise decree upon joint equal but undivided shares of petitioner and respondent no.2. Respondent no.2 was to collect and manage rent on behalf of both vide GPA of year 1980 and respondent no.2 had not right to execute GPA in favour of respondent no.1 or anyone else to sell the property. Even if it is presumed that respondent no.2 could have sold his undivided share of the tenanted premises, the respondent no.1 for the purposes of this petition, would continue to be tenant and it is his responsibility to seek partition of share of respondent no.2. The Pages 18 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
Civil Court of Competent Jurisdiction is already considering the said aspect of GPA of respondent no.2 and subsequent sale deed of respondent no.1 in favour of his wife, however the same is no impediment before this Court to hold that respondent no.1 is still a tenant of petitioner and respondent no.2. This Court has no dearth in saying that respondent no.1 failed to adhere to the law and employe due caution in ascertaining/ seeking the previous title of the respondent no.2. Since he knows that registered sale deed is valid mode of transfer of property, he cannot be called an illiterate or a bonafide purchaser of the tenanted premises.
25 An attempt has been made by respondent no.1 to challenge the very maintainability of the present case wherein reliance has been placed on four judgments i.e. S. Makhan Singh v. Amarjeet Bali, 2008 (106) DRJ 705 dated 03.11.2008; Naeem Ahmed v. Yashpal Malhotra dated 27.02.2012; Swan Lata Aggarwal & Anr. v. M/s. Narang Medicine Co., dated 24.11.2015 and MCD v. Harish Chand & Ors, 115 (2004) DLT 481, all passed by the Hon'ble High Court of Delhi. All the four judgment relied by the respondent no.1 lays down that where tenancy has been denied by the respondent, the benefits of DRC Act would not be available for such tenant/ respondent. This Court has gone through these judgments and none of the four applies to the facts and context of the present case. The first three judgments are not even pertaining to proceedings before Rent Controller and are challenge to pendency of civil suit by party and the challenge being denied in view of the denial of landlord-tenant relationship. The Hon'ble High Court of Delhi underlined that where the tenant denies landlord-tenant relationship he loses any benefit of DRC Act and landlord in such a scenario can file civil suit seeking recovery of possession. In the fourth matter, there was dispute as to title over the premises wherein both parties were claiming their own independent title based on Will and Gift, respectively. In the present case, the respondent no.1 admitted his father was tenant in the premises Pages 19 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
of petitioner's father and petitioner contests that he never transferred his share of property to respondent no.1 and he has not become owner. Even the respondent no.1 alleges that respondent no.2 sold property to him and from the discussion above, it can be seen that his claim of title is pending. Although rent controller cannot return any finding as to title to any property, however Rent Controller can decide the landlord tenant relationship and as such eviction petition under DRC Act is maintainable. It is still open to the landlord to file civil suit straight away where none of the benefit of DRC Act would be available to tenant, however same does not preclude the landlord to still file suit for eviction on the grounds mentioned in the DRC Act and to prove existence of landlord and tenant relationship. To counter these arguments of respondent no.1, the judgement of the Hon'ble Supreme Court of India, in Pramod Kumar Jaiswal (Supra).
Section 14(1)(a) - non-payment of rent 26 Section 14(1)(a) provides that if a tenant defaults in payment of rent within two months of receipt of notice of demand under Section 106 Transfer of Property Act. In the present case, the respondent no.1 admitted not paying rent since the year 1997. Respondent no.1 also admitted being in receipt of notice dated 21.01.2013 and admitted that he has not replied or paid any rent qua the tenanted premises. The petitioner vide notice Ex.PW1/7 sought to recover rent of three year immediately prior to date of notice i.e. 21.01.2013 @Rs.15/- per month for a total of Rs.540/- within two months. The respondent no.1 admitted receipt of notice and non-payment of rent. The only defence of the respondent no.1 is that the respondent no.1 has acquired title from respondent no.2 and thus has liability to pay rent. The issue of alleged acquisition of title by respondent no.1 has been discussed at length hereinbefore and thus is not reiterated again.
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27 The said issue in view of the discussion above stands proved ipso-facto.
The respondent no.1 being in arrears of rent immediately prior to service of notice Ex.PW1/7 and till today is liable to be evicted on the ground under Section 14(1)(a) DRC Act.
Section 14(1)(b) - sub-letting or otherwise parting with possession of the premises in whole or part of the premises without express consent in writing of the landlord 28 The requirement of Section 14(1)(b) DRC Act is that there is sub-tenancy or parting of possession of whole or part of the property. The respondent no.1 has denied as to presence of Mr. Anuj Khattar and running of M/s. Rachit Communication by Mr. Anuj Khattar in his pleadings. In his deposition, respondent no.1 admitted that he parted with the possession of the tenanted premises in favour of his wife vide registered sale deed Ex.RW1/2. Although only one of the requirement of Section 14(1)(b) is required to be proved i.e. sub- letting or parting with possession and in the present case prima facie it appears that respondent no.1 has parted with possession of the tenanted premises. The allegations of sub-tenancy is under paragraph 8 of the annexure of the petition, to which the respondent no.1 denied that Mr. Anuj Khattar was present. The petitioner stated that Mr. Anuj Khattar was present and running the business claiming to be sole-proprietor, however the petitioner has failed to show his presence, any visiting card or proof that M/s. Rachit Communication was sole- proprietorship of Mr. Anuj. The petitioner was duty bound to prove that Mr. Anuj was present and sub-tenant of respondent no.1. The petitioner has merely placed photographs of the property (before and after renovation), however in his pleading he stated that after demise of his father, the respondent no.1 continued possession of tenanted premises and started M/s. Rachit Communication instead of tea stall of his father. The petitioner has thus admitted that M/s. Rachit Pages 21 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
Communication was started by respondent no.1, however he has failed to prove that there was a sub-tenant named Mr. Anuj Khattar running the said entity now.
29 Before discussing about the other condition of Section 14(1)(b), evidence led by respondent no.1 requires consideration. Respondent no.1 exhibited Ex.RW1/1 i.e. GPA executed in the year 1997 by respondent no.2. As per the petitioner's own case, the respondent no.2 is joint equal undivided owner of tenanted premises and petitioner side has not disputed the genuineness of Ex.RW1/1. The petitioner side has challenged the sole-authority of respondent no.2 to execute Ex.RW1/1, however as regards the joint owner and joint landlordship of respondent no.2 there is no dispute by the petitioner.
30 The respondent has admitted parting possession in favour of his wife and has not disputed possession of one Mr. Anuj Khattar, however the defence has been that the respondent since 1997 through GPA sale documents and his wife since 2010 being owner vide registered sale deed, are free to deal with the demised premises. As already recorded by this Court in preceding paragraphs, the respondent no.1 is held to be tenant of the petitioner. Now, before deciding the issue, one aspect is relevant to consider the General Power of Attorney executed by petitioner in favour of respondent no.2 Ex.PW3/1 wherein the petitioner gave respondent no.2 authority to manage with the properties. Under such authority, the respondent no.2 is stated to executed Ex.RW1/1 (OSR) wherein the respondent no.2 appointed respondent no.1 as his tenant and particularly covenant particularly pertaining to creation of transfer deeds. The respondent no.2 thus allowed respondent no.1 to enter into transfer deeds, which would include sub-tenancy. However, the said authority was given to the respondent no.1 only and not to any other person. The respondent no.1 as Pages 22 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
already held earlier had not acquired any title in the demised premises in over the tenancy rights he already had.
31 At this stage the settled law with regard to creation of lawful sub-tenancy is relevant. It is settled law in Amar Kumar Sen v. Gita Rani Das & Ors., (2005) 13 SCC 83 that requirement of written consent of landlord for creation of sub- tenancy is mandatory. It is also settled law in Labanya Neogi v. W.B. Engineering Co. (1999) 7 SCC 431 that even if the landlord has knowledge of the existence of sub-tenancy or accepts rent, it cannot protect the sub-tenant as the consent of the landlord in writing is necessary for the creation of a lawful sub-tenancy. In Joginder Singh Sodhi v. Amar Kaur (2005) 1 SCC 31, the Hon'ble Supreme Court held that permission of general nature is not valid, for sub-tenancy to be legal, the permission has to be specific and express. Also in M/s. Shalimar Tar Products Ltd. v. H.C. Sharma and Others, AIR 1988 SC 145 it was held that a general authority given by the landlord to the tenant to induct sub-tenant is not sufficient in law. The previous consent in writing of landlord in respect to each sub-letting separately is essential and in absence of such consent, the landlord is entitled to evict the landlord.
32 Having considered that law on the subject, the facts of the present case would clearly set out that the respondent no.1 has not only parted with the possession but has also allowed sub-tenancy in the demised premises. The respondent no.1 in his cross examination admitted to have parted with the possession in favour of his wife. The respondent no.1 having parted with the possession of the demised premises is liable to be evicted on the ground under Section 14(1)(b) DRC Act.
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Section 14(1)(j) - tenants caused or permitted to be cause substantial damage to the tenanted premises 33 The petitioner alleged this ground on the basis of site map and photographs of the demised property. The petitioner alleged that the photographs annexed with his petition shows the extent of damage and construction carried out by the respondent wherein he has almost changed the entire structure by extending the roof of the property. The respondent no.1 has denied the site plan as well as these photographs being that of the demised premises. The onus to prove the said issue was on the petitioner, however the photographs have not been proved. Respondent no.1 even stepped in the witness box as RW1 and these photographs were not put to the respondent no.1. RW1 deposed that he did carry out repairs after the alleged sale being owner of the property, however he was not confronted with the photographs to show that whether repairs were carried out or substantial damage and alteration was done to the demised property. RW1 in her cross examination was only questioned and she denied the suggestion that she caused damage to suit shop. RW1 voluntarily stated that he was in possession of the suit shop for many years and he caused no damage and infact repaired some damage.
34 In support of the above averments, the petitioner has led no evidence to show any proof of damage or construction. There is only allegations, denial and verbal statements. The same is not sufficient to prove the conditions of Section 14(1)(j) DRC Act. The sections requires proof of substantial damage to the suit premises. The petitioner in the present case has not just failed to prove any damage but also could not prove any substantial damage to the property. This Court finds that the petitioners have failed to prove any substantial damage to the tenanted property and therefore ground Section 14(1)(j) are not proved.
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RELIEF
35 In view of the aforesaid discussion, the petitioner has been able to prove
all the ingredients required to prove an eviction petition under 14(1)(b) DRC, Act to obtain an order in his favour in respect of suit premises. The petition qua ground of illegal sub-letting under Section 14(1)(b) DRC Act is therefore allowed. The petitioners have failed to prove the ingredients of Section 14(1)(j) DRC and therefore the present petition qua ground of Section 14(1)(j) DRC Act is dismissed.
36 Next point of consideration would be if respondent no.1 is entitled to benefits of Section 15(1) DRC Act. The petitioner has maintained that respondent no.1's father Sh. Godha Ram was paying rent of Rs.4.50/- per month and thereafter the rent was increased to Rs.15/- per month. The petitioner has also relied on his legal notice dated 21.01.2013 Ex.PW1/7 (Colly) (OSR) and argued that the respondent has even admitted receipt of legal notice. The respondent no.1 has denied that his father ever paid any rent to Petitioner's grandmother or father and stated that no rent was ever paid of Rs.15/-. The respondent no.1 reiterated his defence that petitioner has no locus to file the present petition since respondent no.1 has independent title over the demised premises.
37 During cross examination of RW1 he was confronted with Ex.RW1/P1 (OSR), Ex.RW1/P2 (OSR) and Ex.RW1/3 (OSR) wherein he admitted that the rent was paid by his father and said receipts pertained to the premises in question. There is clear cut admission by the respondent no.1 of his father being tenant in the demised premises and the respondent no.1 was duty bound to establish the lawful rent which was to be paid by him. Not just establish, the Pages 25 of 26 RC ARC No. 5955 of 2016 Praveen Jain v. Govind Lal & Anr.
respondent no.1 was even to show that he has paid or tendered lawful rent to the petitioner or his brother/ respondent no.2.
38 The present petition is thus first default on part of the respondent and he is entitled to benefit of Section 15(1) DRC Act. The demand notice dated 21.01.2013 Ex.PW1/7 was qua rent for the period of three years preceding the notice i.e. January 2010 to December 2012 which @Rs.15/- per month would be Rs.540/-. The respondent no.1 has thus to pay rent of Rs.540/- towards rent due for the period of January 2010 to December 2012. The respondent no.1 was further duty bound to continue to pay rent from January 2013 onwards till date. Till date i.e. October 2024, rent for 262 months i.e. from January 2013 to September 2024 is due. The respondent is thus directed to pay Rs.4470/- towards lawful rent due towards the petitioner for period of January 2010 to September 2024 within a period of one month from this Order, to avail the benefits of Section 14(2) read with Section 15(1) DRC Act. The respondent no.1 is also liable to pay interest @ 15% per annum on the above-said lawful rent due from the date on which it was due. No order is passed against respondent no.2 who is co-landlord and merely proforma party in the present petition.
39 Ordered accordingly. File be consigned to record room after due
compliance. Digitally signed
PARAS by PARAS
DALAL
DALAL 2024.10.21
Date:
16:34:54 +0530
Announced in the open Court (PARAS DALAL)
on October 21, 2024 ARC-CCJ-ACJ(South)
Saket Courts/Delhi
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