Delhi District Court
Against This Execution Petition vs . on 1 November, 2010
IN THE COURT OF SH. DIGVINAY SINGH SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
EX. 45/09
Gurdial Singh Sandhu
s/o. Late Sh. Rattan Singh
r/o. F-2, Main Road,
Shastri Nagar,
Delhi-110052 .................Decree Holder
Vs.
Surinder Kumar
s/o. Sh. Man Singh
r/o. 1/1-13, Ram Gali,
Budh Vihar,
Phase-II,
Delhi-110041 ..................Judgment Debtor
Date of institution of suit : 09.12.2009
Date of reservation of order : 23.10.2010
Date of order : 01.11.2010
ORDER
1. Against this execution petition, for execution of an order of eviction, the objection filed by objector Paljit is the subject matter of this order.
2. Briefly stated the facts of this case are, that an eviction petition u/s.14(1)(e) of Delhi Rent Control Act 1958 (DRC Act), filed by Rattan Singh, the deceased father of Gurdian Singh Sandhu, was allowed. In that eviction petition, the tenant/respondent was one Surender Kumar. The eviction petition was regarding shop no.3, Ground Floor, F-2, Main Road, Shastri Nagar, Delhi. Eviction order was passed, on 16.02.2009. When possession of the shop could not be taken, the present execution petition was filed by the son of Rattan Singh.
3. The tenant/respondent Surender Kumar, against whom that eviction order was passed is not contesting or obstructing the warrants of possession, issued in the present execution petition, but, Paljit has filed the present objections.
EX. 45/09 Page 1 of page 6
4. The objector claims that the objector was a tenant of adjacent shop no.4 on the ground floor of property, but, the objector is also in occupation of the shop no.3, in question in the present execution petition. Objector explains as to how he came into occupation of this shop no. 3. The objector admits that initially he was a tenant only in shop no.4 and not regarding shop no.3. Rattan Singh, who was admittedly the landlord, filed two different eviction petitions u/s.14 (1) (f) & (j) of DRC Act, against the present objector as well as Surender Kumar. The said Mr. Surender Kumar was a tenant of shop no.3, which is shop in question. This fact is also admitted by the objector. In those two earlier execution petitions, the landlord and the two tenants entered into a compromise. Pursuant to the compromise, in the earlier two eviction petitions, following statements of Rattan Singh (landlord), objector (Paljit) were recorded :
Statement of Rattan Singh -
"I am the petitioner in the case and competent to give an undertaking for protection of the rights of the Respondent herein. I undertake to allow the Respondent Paljit Singh to remain in joint possession of shop no.4 forming part of premises no. F-2, Main Road, Shastri Nagar, Delhi, during the reconstruction/repairs in the basement under the said shop. I further undertake to allow one Civil engineer employed by the Respondent for the purpose of construction/repairs of the shop, under reference as well as basement under it, to associate along with the Civil Engineer employed by me for the purpose of repair/construction work. I further undertake to get the repair/construction work completed within the period of 120 days from today and to allow the Respondent to occupy shop no.4 after repair/construction on the same terms and conditions on which it stands under his tenancy. I further undertake to allow the Respondent to display at the conspicuous place in front of the said shop no.4 to the effect that said shop and the land underneath it in the joint possession of the Petitioner as well as the respondent under the order passed by Court today in the petition, till the shop is repaired/reconstructed and thereafter the respondent would come into the possession of the said shop in terms of the agreement prevailing today. I further undertake not to part with the possession and transfer my interest in the said shop to any person by any means under the garb of repairs/reconstruction. The entire cost of repairs/reconstruction would be borne by me. In case the respondent agrees to the terms offered by me in my undertaking under reference, my petition may be dismissed as withdrawn."
EX. 45/09 Page 2 of page 6
Statement of objector Paljit Singh-
"I am the tenant in shop no.4 forming part of the premises no. F-2, Main Road, Shastri Nagar, Delhi, under Shri Rattan Singh at a monthly rent of Rs.385/- per month exclusive of electricity charges. I have heard the undertaking given by the Petitioner. I undertake to pay the rent to the Petitioner during the period when the shop is under repairs/construction. I undertake to associate with the Petitioner in the repair/construction work of the aforesaid shop from the basement upto the roof level of that shop from 25.08.1995 and would render my assistance through a civil engineer employed by me as well as my person care and supervision, to the Petitioner. I have a right to joint possession on the land underneath the above shop till the shop is repaired/reconstructed and I would be given the possession of the said shop after the construction. On getting the possession of the said shop in terms of the tenancy right, joint possession over the land come to an end, I would display in front of the said shop under the orders of this Court passed today. In all events, the demolition work of the shop would start within this week, positively. I will take all the steps to facilitate the demolition as well as repair works within this week itself. I further undertake not to cause any hindrance in demolition as well as repair/reconstruction work".
5. Pursuant to the above mentioned compromise statements, following order was passed by Ld. ARC on 24.08.1995 :
"In view of the above undertaking given by the parties, it is hereby ordered that the Respondent as well as the Petitioner would associate themselves by employing their respective civil engineers for demolition and repair/reconstruction of shop no.4 forming part of F-2, Main Road, Shastri Nagar, Delhi, alongwith the portion of basement underneath it, within this week. The Petitioner would get the basement and shop repaired/reconstruction and would hand over the possession of the said shop under the tenancy rights of the Respondent as it exist today, on the same terms and conditions. The Petitioner will have a right to raise construction on the shop according to the Municipal Bye Laws and respondent would not cause any hindrance in that behalf. It is further ordered that the parties would abide by their respective undertakings referred above. In view of the statement made by the parties, the petition is dismissed as withdrawn. No order as to costs. File be consigned to the Record Room".
EX. 45/09 Page 3 of page 6
6. It is claimed, by the objector, that the landlord deliberately did not seek necessary sanction from the competent authority, so as to avoid re-construction of the shop, and when the wall between shop no.3 and shop no.4 was demolished, pursuant to the said compromise, some goods of the objector, which were kept in shop no.4, fell in the shop no.3. It is on account of this fact of falling of goods from the shop no.4, inside shop no.3, that the objector claims that he came in possession of shop no.3, also. Objector also claims that even the landlord consented to its possession by the objector, but, admittedly, there is no written consent in this regard. Rather, on behalf of landlord, it has been vehemently denied. The objector claims, that it was agreed between the landlord and the tenant that his goods would be removed only when the construction takes place and the wall between the two shops is again erected; landlord has been wrongfully withholding the construction and thus the objector is holding both the shops as one unit, paying Rs.385/- as rent for entire property, i.e., shop nos.3 & 4. Otherwise, it is an admitted fact that the said rent of Rs.385/- per month was regarding one shop only and earlier Surender and the objector were paying Rs.385/-, separately, qua the two shops. Objector claims that Civil Courts came to a conclusion that landlord was deliberately not taking requisite permissions from the municipal authorities and, thus, the landlord cannot take possession of shop no.3.
7. Thus, the crux of the matter is that on account of compromise between the landlord and the two tenants, i.e., the objector and another tenant Surender Kumar, with respect to the two different shop nos.4 & 3, the wall was demolished, separating the two shops and, only because some of the articles of the objector fell into the shop no.3 from shop no.4, the objector claims its lawful possession.
8. Admittedly, there is no written agreement between the landlord and the objector that the objector was put in possession of shop no.3, also. There is no written agreement that the landlord consented to allow the objector to keep his articles in the shop no.3, until the shops are reconstructed or the wall is erected. The statement of parties recorded in the earlier eviction petition, as quoted above, by no stretch of imagination gives a conclusion that the objector was put in possession of shop no.3 also. The claim of the objector that merely because his goods fell into the shop no.3 and, therefore, he is in lawful possession of shop no.3, has to be rejected. It is an admitted EX. 45/09 Page 4 of page 6 fact that the objector was tenant in shop no.4 only and not in shop no.3. This fact is crystal clear from the pleadings in earlier litigations between the parties. Not only the earlier litigations gives a clear indication about this fact, but also the very objections filed by the objector show that there is no doubt that shop nos.3 & 4 are two distinct properties, which were in possession of two different tenants, i.e., objector qua shop no.4 and Surender Kumar qua shop no.3. Whether the landlord is deliberately not reconstructing the property or not, and as to its consequences, we need not go into this execution petition, since, admittedly, the objector filed an appeal before the Ld. Rent Control Tribunal regarding earlier eviction petitions and the Appellate Court ordered, that the only order possible in such a position was that the objector can apply for sanction of reconstruction of suit premises, independently and not that of the whole building as applied by him. Even that order would go to show that occupation of the objector qua shop no.3 was not accepted by any Court. Even this Court is not prepared to accept that the occupation of the objector in shop no.3 is lawful.
9. Surender Kumar is not contesting the eviction proceedings in this execution and it was claimed that he had agreed to surrender the shop to the petitioner. In such circumstances, the objector has no right, whatsoever, to obstruct in taking possession of shop no.3. Shop nos.3 & 4 cannot be termed as one unit and both these shops are two different units. Claims of the objector that possession of shop no.3, cannot be taken since wall is not there, is without force, since as per site plan and measurement of shop no.3, the said corresponding area can indeed be taken possession of.
10.Ld. Counsel for the petitioner has relied upon AIR 1957 Orissa P-276, titled as Orient Paper Mills Ltd. Vs. Sita Ram Aggarwal, in order to show, that the manner in which the objector claims to be in lawful possession of shop no.3, as lessee, cannot be accepted at all. It was held in that case that u/s.107 of Transfer of Property Act, delivery of possession is essential for creating tenancy rights, in absence of registered document. If, there is no delivery of possession, there can be no title in favour of lessee and as such, such lessees cannot bring any suit for ejectment against any trespasser. It was also held that mere acceptance of rental by the landlord, cannot create tenancy.
EX. 45/09 Page 5 of page 6
11.In the present case also, there is no transfer of possession by the landlord in favour of the objector.
12.The petitioner has also relied upon the case of Murari Lal Vs. Sunder Singh, 172(2010)DLT 402, wherein it was held that frivolous objections needs to be dealt with strongly and with imposition of heavy cost.
13.In the present case, this Court has no hesitation in holding that the objector has no independent right, title or interest qua shop no.3. Although, he is a tenant in the shop no.4, but his claim of lawful occupation of shop no.3, is absolutely misconceived. Neither in the statements for compromise recorded in earlier eviction petition, nor in any other mode, the objector was put in lawful possession of the shop. The objector has no right to obstruct the execution of warrants of possession qua shop no.3. The objections of the objector is accordingly dismissed.
14.For the same reason, the contentions of the objector against the prayer of police aid and breaking open of the locks, doors and walls etc. of the said premises, as prayed by the petitioner/DH, ought to be dismissed.
15.The petitioner/DH has also filed an application u/o.21 rule 35 and 97 of CPC, praying that the Contempt of Court proceedings be initiated the objector and his other family members and associates and they may be arrested and detained. There is no need to pass any such order, as on today, since the objector, whether rightly or wrongly, thought that he has a right to obstruct the execution and he filed his objections. His objections have been rejected today and it would be for the Court to see, whether he still obstructs the execution and in that eventuality, he can be proceeded against appropriately under appropriate provisions of law. We need not go into the other details, whether this application is under appropriate provisions of law or not, for the said reason. The application of the petitioner/DH need not be entertained further u/o. 21 rule 35 & 97 of CPC.
Announced in open Court on 01.11.2010 (DIG VINAY SINGH) SCJ/RC(NORTH)/DELHI.
EX. 45/09 Page 6 of page 6