Delhi District Court
Sh. Nawabuddin vs Sh. Mohammad Kamil on 17 April, 2018
IN THE COURT OF SH. GAJENDER SINGH NAGAR,
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL RENT
CONTROLLER (CENTRAL) : DELHI
E63/17 (Old), 79826/16 (New)
In the matter of :
Sh. Nawabuddin,
S/o Late Sh. Altafuddin,
R/o 2625, Baradari, Sher Afgan,
Ballimaran, Delhi110006. ......Petitioner
Versus
1. Sh. Mohammad Kamil,
S/o Late Sh. Mohammad Saddique,
2. Sh. Mohammad Rasheed,
S/o Late Sh. Mohammad Saddique,
3. Smt. Fardus Begum,
D/o Late Sh. Mohammad Saddique,
All R/o 2627 (Ist Floor),
above Katra Munir Khan, Baradari,
Ballimaran, Delhi110006.
4. Sh. Mohammad Taheer (deceased) through
his legal heirs :
(i) Smt. Sameena Begum,
widow of Sh. Mohammad Taheer,
(ii) Sh. Mohammad Faisal,
S/o Late Sh. Mohammad Taheer,
(iii) Ms. Heena Mumtaz,
D/o Late Sh. Mohammad Taheer,
(iv) Sh. Mohammad Faizan,
S/o Late Sh. Mohammad Taheer,
E79826/16 Page 1/25
(v) Ms. Adiba,
D/o Late Sh. Mohammad Taheer,
All R/o 560, Jai Apartments,
Gali No.12, Zakir Nagar, Jamia Nagar,
Okhla, New Delhi110025. ....Respondents
Date of Institution : 29.09.2004 Date of order when reserved : 04.04.2018 Date of order when announced : 17.04.2018 J U D G M E N T:
1. Vide this judgment, I shall dispose of the present eviction petition filed by the petitioner U/s 14 (1) (e) of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'Act'), filed in respect of premises bearing no. 2627, 1st Floor, above Katra Munir Khan, Baradari, Ballimaran, Delhi consisting of two rooms alongwith latrine, bathroom, a kolki, compound and also terrace of the tenanted premises, as shown in red colour in the site plan.
2. The averments as mentioned in the petition are reproduced in brief here as under :
(a) That the petitioner has purchased the built up property bearing no. 2627, above Katra Munir Khan, Baradari, Ballimaran, Delhi from the erstwhile owner, Sh. Mohammad Mohsin by way of a registered sale deed dated 07.01.1997. The suit property is a residential house and was let out to Smt. Shamshun by the erstwhile owner for residential purpose at the rate of rent of Rs. 12/ per month excluding any other charges. She had been using the property for residential purposes during her lifetime and after her death, the respondents had been using the premises in question for residential E79826/16 Page 2/25 purposes. Three rent receipts of the year, 1988 and 1989 filed by petitioner. Since the accommodation is too short and is not sufficient to accommodate all the respondents and their growing requirement, the respondent no.4 (now deceased) alongwith his family members has shifted his residence from the premises in question to Jai Apartments, Gali No.12, Zakir Nagar, Jamia Nagar, Okhla, New Delhi. The respondents were tenants under previous owner and they became tenants under the petitioner by operation of law on the purchase of the suit property by the petitioner. Besides the respondents, Smt. Shamshun had one more daughter namely Smt. Fardos who was divorcee and had a child also. Smt. Fardos and her son had already died.
(b) That the petitioner is in bonafide need of the tenanted premises for his own occupation and the occupation of his dependent family members. The family of the petitioner consists of petitioner himself, his wife and three children namely Kumari Ikra Nawab (aged about 10 years), Master Areeb Nawab (aged about seven years) and Kumari Tazbiya Nawab (aged about four years). The petitioner alongwith his family are living in H.No. 2625, Baradari, Sher Afgan, Ballimaran, Delhi110006 consisting of only one room on the second floor which measures about 8' X 14.5'' in which originally, the father of the petitioner was a tenant. The father of the petitioner died about 15 years back. The family of the father of petitioner consisted of the parents of the petitioner, their four sons and five daughters. All the five daughters had been married during the lifetime of the father of petitioner. Out of four brothers of the petitioner, three had been married during the lifetime of the father, while the fourth son is still unmarried. The entire accommodation under the tenancy of the father of the respondents consisted of one room measuring 8' X 14.5'', one kitchen, latrine on the first floor; one room over the room of the first floor, one room over the kitchen of E79826/16 Page 3/25 the first floor, besides open space and bathroom on the second floor. There is a temporary tin shed on the third floor, as shown in green colour in the site plan. After the death of the father of the petitioner, the rent receipts were issued in the name of brother of the petitioner namely Sh. Abdul Hanam. Sh. Abdul Hanam and his family is also residing in the said premises who are in occupation of one room at the first floor and one room at the second floor. The family of Sh. Abdul Hanam consists of Sh. Abdul Hanam himself, his wife and six children namely Ms. Gulnaz (aged about 26 years), Sh. Sohail (aged about 24 years), Sh. Fasil (aged about 22 years), Sh. Wasen (aged about 20 years), Sh. Naseem (aged about 18 years) and Master Naved (aged about 16 years). All the family members of Sh. Abdul Hanam are also residing in the said H.No. 2625. Due to paucity of accommodation, the unmarried brother and one married brother of petitioner have also shifted their residence.
(c) That the accommodation with the petitioner in H.No. 2625 is not at all sufficient to accommodate the entire family of 13 persons. The married sisters of petitioner and two brothers who had shifted also visit them. The other relatives of petitioner also visit them. The petitioner has no accommodation even to properly entertain them and provide them proper sitting place what to speak of sleeping space, if they stay with the petitioner. There is only one latrine for all the family members at the first floor and one bathroom for all the families at the second floor. There is only one kitchen on the first floor which is common. There is no store room with the petitioner and his brother. Therefore, they have put up a small temporary tin shed in one corner on the third floor which is open from sides. Some of their luggage remains lying there.
E79826/16 Page 4/25(d) That the petitioner had been given vacant possession of one shop on the ground floor of property no.2626 as shown in green colour in the site plan. It was a shop and has a shutter opening into gali. Since the accommodation with the petitioner is too short to accommodate his family, the household goods are being stored in the said shop and the petitioner is thus, compelled to use the said shop as a store room. There was other shop on the back of the said shop on the ground floor which was under tenancy of Sh. Raman right from the beginning prior to purchase of the said property by the petitioner and thereafter, the said shop was sold by petitioner to Sh. Raman. The premises which are under the possession of petitioner and his brother, Sh. Abdul Haman is rented premises and do not belong to them. Petitioner has no other alternative residential accommodation available with him. Petitioner badly needs the suit premises for his own residence and residence of his dependent family members. The petitioner wants to shift to the premises in question and wants to live in his own house. The petitioner has even filed a Civil Suit for injunction to restrain the respondents from raising unauthorized construction.
3. Summons were served upon the respondents and their application for leave to defend was allowed vide order dated 12.10.2007.
4. Separate written statement was filed on behalf of the respondents no.1 to 3 and on behalf of LRs of deceased respondent no.4. The claim of the petitioner has been challenged by the respondents on the following grounds : (I) That the petitioner has no locus standi to file and maintain the present petition as he is not the owner/ landlord of the premises in question. It is further stated that the issue of the title of property and the relationship of E79826/16 Page 5/25 landlord and tenant between the parties is pending in the Civil Court. It is denied that the respondents were tenants under the previous owner Mohd. Mohsin and they became tenants under the petitioner by operation of law. The respondents are in occupation of the property in question in their own right and not as tenants under the petitioner. The petitioner has nothing to do with the premises in occupation. The respondents never paid rent to the petitioner. They are in possession, use and occupation of the premises prior to 1947. One Sh. Nazir Khan was the owner/ landlord who had migrated to Pakistan and the property had fallen in the control of Custodian, Ministry of Rehabilitation. The property was an evacuee property and after 1958 neither the Custodian, nor any one ever claimed the rent. The father of the respondents had received a letter of demand from the Ministry of Rehabilitation in consequence of the same he had paid rent to the Custodian. Initially the rent was Rs. 2.50 and the same was being paid to the Custodian. The respondents have not paid rent for the last 12 years. They have become the owners, if the property is not of the Government.
(II) That Smt. Shamshun was not the original tenant. Initially, the premises was taken on rent by Mohd. Saddiq and upon his death, respondents no.1 to 3, their mother and brother came into possession in their own rights as Mohd. Saddiq was not paying rent to any one as none had came forward. Mother and brother, Mohd. Taheer have already died. Children of Mohd. Taheer left the premises as the accommodation was very short and inadequate. Smt. Firdos is alive and is living in the premises. The electricity connection is in the name of father and water connection is in the name of mother of respondents.
(III) That the premises was earlier let out for commercialcum E79826/16 Page 6/25 residential purposes. The premises had been throughout used for residential and commercial purposes. The father of the respondents was Zardoz by profession and he used to work in the premises in question. The respondents are also using the premises for composite purposes and not purely for residential purpose. The work of zardosi is being done in the premises by the respondent no.3 and the respondent no.1.
(IV) That the premises in occupation of respondents consists of one room, one store, latrine, small courtyard and terrace and not, two rooms, latrine, bathroom, a kolki and compound. The site plan filed by the petitioner is incorrect. The petitioner has not disclosed any correct extent of the premises.
(V) That the petitioner is already in possession of more premises. It is submitted that the petitioner has got one property bearing no. C31, Batla House, Jamia Nagar, New Delhi having five rooms and the same is lying vacant. The premises in question is situated in Slum area and till permission U/s 19 of Slums Act is obtained, no eviction petition lies against the respondents.
(VI) That the petitioner does not require the premises in question bonafidely for his own residence and residence of his alleged dependent family members. It is denied that the family of the petitioner consists of members as alleged by him, or they are dependent upon him. It is also denied that the accommodation available with the petitioner is not sufficient. The premises in occupation of respondents i.e. only one room, one store and latrine cannot be said to be sufficient, or suitable to the family of the petitioner as has been detailed by him. It is denied that the accommodation E79826/16 Page 7/25 with the petitioner and his family members in H.No. 2625, Bara Dari Sher Afghan, Ballimaran, Delhi consists of only one room. It is further denied that originally the father of the petitioner was tenant. It is incorrect that the entire family of the petitioner's father was living in the aforesaid tenanted house of his father.
5. Replication to the written statement was filed by the petitioner. The petitioner has denied the allegations of the respondents and has reiterated the same facts as averred in the petition. It is submitted that the petitioner does not own any property bearing no. C31, Batla House, Jamia Nagar, New Delhi. The petitioner has no concern with any such property, or that any such property of the petitioner having five rooms is lying vacant.
6. In order to prove his case, the petitioner has examined himself as PW1 and Sh. Shizauddin as PW2.
7. PW1 i.e. the petitioner filed on record three affidavits. In his first affidavit he reiterated the entire petition. He also filed an additional affidavit dated 01.08.2013, in this affidavit he filed on record mutation order of MCD as Ex. P9 whereby the property in question was exhibited in his name. He also filed receipts of payment of property tax qua property in question as Ex. P10 and Ex. P11. He also exhibited on record survey report of MCD qua property in question as Ex. P12. Thereafter, he again filed an additional affidavit dated 25.02.2016 wherein it is stated by him that the suit property was released in the favour of Mst. Subhani Begum by the Custodian of Evacuee Property, Ministry of Rehabilitation, Jam Nagar House, Man Singh Road, New Delhi vide judgment dated 11.05.1959 which is exhibited as Ex. P13 passed in case no. 1520R/ Judl./ DLH/ 58 by Sh.
E79826/16 Page 8/25R.L. Aggarwal, Deputy Custodian General of Evacuee Property, Massouri in case titled as Deputy Custodian General of Evacuee Property Vs. Shrimati Subhani Begum and also letter no. ACC/ D/ 2018/ 15.06.1960 and AC/ D/ 20202043/ 16.06.1960 which are exhibited as Ex. P14 issued by Sh. M.D. Singh, Assistant Custodian (Ex.), Jam Nagar House, Man Singh Road, New Delhi. Further, Mst. Subhani Begum executed a registered Will dated 15.02.1977 bearing registration no. 168, Addl. Book No. III, Vol. No. 99 on pages no. 118 to 122 registered on 21.02.1977 in the office of SubRegistrar 1 (North), Delhi which is exhibited as Ex. P15 (copy of which is earlier marked as P2) in favour of her sons namely Mohd. Ashqin, Mohd. Muzammil, Mohd. Mohsin and daughters namely Mst. Tahira Begum and Mst. Akhtari Begum in respect of her property situated at Baradari, Ballimaran, Delhi. However, the suit premises was bequeathed to Mohd. Mohsin by way of the said Will. Further, the petitioner has purchased the suit premises alongwith other portions from Mohd. Mohsin by virtue of registered sale deed dated 07.01.1997 as Ex. P1. However, the said sale deed has been rectified vide separate registered rectification deed duly registered under document no. 2009, Addl. Book No.1, Vol. No. 5671 on pages 157 to 161 registered on 16.03.2016 in the office of SubRegistrar1 (North), Delhi which is exhibited as Ex. P16. PW1 exhibited these affidavits on 04.03.2015 and 11.11.2016, however despite opportunities he was never crossexamined on behalf of the respondents.
8. PW2, Sh. Shizauddin also deposed on the same lines as PW1. This witness was also not crossexamined by the respondents despite opportunities.
9. In support of their case, the respondents have examined E79826/16 Page 9/25 respondent no.2 as RW1.
10. It is stated by RW1 that there is no relationship of landlord and tenant between the parties. It is stated that the petitioner does not require the premises bonafidely. It is stated that the respondents are using the premises for composite purposes and not purely for residential purpose as the work of Zardosi is being done by the respondents in the premises in question. It is stated that father of the respondents is paying rent to the Custodian department. It is stated that they never paid rent to the petitioner. It is stated that they are in possession since prior to 1947. It is stated that one Sh. Nazir Khan was the owner/ landlord who migrated to Pakistan. It is stated that the premises was not let out for any specific purpose, however the respondents are using the same for composite purposes i.e. commercial and residential. It is stated that the site plan filed by the petitioner is incorrect. It is stated that the respondents are in possession in their own right after migration of the owner/ landlord to Pakistan. It is stated that the petitioner has given wrong strength of his family and wrongly given the extent of premises in his occupation. It is stated that the property was an Evacuee Property and after 1958, neither the Custodian, nor anyone else ever demanded rent and thus, father of respondents went on living without payment of rent. Hence, after expiry of 12 years, he became owner of the premises by adverse possession. It is stated that the father of respondents received a letter of demand from Ministry of Rehabilitation, consequently he paid rent to the Custodian. It is stated that the petitioner has got one property bearing no. C31, Batla House, Zamia Nagar, Delhi. This witness exhibited 10 rent receipts issued by Ministry of Rehabilitation as Ex. RW1/1 to Ex. RW1/10. In his cross examination, it is stated by him that his father was a tenant in the property prior to partition. His landlord was Sh. Nazir Khan who went to Pakistan. It E79826/16 Page 10/25 is stated that after the death of his father, his mother was a tenant in the property. It is stated by him that he does not have any rent receipt issued by Custodian in favour of his mother. It is stated that he is not doing any work. It is stated that he, his sister Smt. Firdos and bhabhi Smt. Shamina are residing in the suit property. This witness could not tell who is the owner of property bearing no. C31, Batla House, Zamia Nagar, Delhi. It is accepted by him that the Civil Suit filed by the petitioner against them was decided on 15.03.2011, it is stated that the petitioner filed an appeal against the judgment which was allowed vide judgment dated 26.10.2016, copy of which is Ex. RW1/P1.
11. No other witness was examined and R.E. was closed.
12. I have heard the arguments and perused the record carefully.
13. It is to be noted that initially the case was filed against Mohd. Kamil, Mohd. Rasheed and Smt. Firdos Begum who were the children of Late Sh. Mohd. Saddiq and also against the LRs of deceased Mohd. Tahib who was also a son of Late Sh. Mohd. Saddiq. The written statement was also filed on behalf of respondents no.1 to 3 i.e. Mohd. Kamil, Mohd. Rasheed and Smt. Firdos Begum and also on behalf of LRs of deceased Mohd. Tahib. However, only Mohd. Rasheed and Smt. Firdos Begum contested the case till end as respondent no.1 Mohd. Kamil expired without any legal heirs and his name was deleted vide order dated 05.03.2008 & the LRs of deceased respondent no.4 themselves stopped appearing in the matter. They have also mentioned in their written statement that they have shifted from the suit premises. The nonappearance of LRs of deceased respondent no.4 is inconsequential as they were not residing in the premises E79826/16 Page 11/25 in question. Further, despite having notice of the case and filing written statement they have stopped appearing in the matter. It is to be noted that it is not required that landlord should make all the LRs of deceased tenant as respondents. Reliance being placed upon judgment in case titled as Inder Pal Khanna (Sh.) Vs. Commander Bhupinder Singh Rekhi (Rtd.), 2008 VIII AD (Delhi) 328 wherein it was held that on the death of tenant, tenancy devolves upon legal heirs as a joint tenancy. Thus, LRs are joint tenants and not tenants in common. Once tenancy is a joint tenancy, notice to one of joint tenant is sufficient to terminate tenancy and suit cannot be held to be bad for nonjoinder of other joint tenants, or all legal heirs of deceased tenant. It is further held that service of one of the joint tenant has to be considered service on the other joint tenant because in joint tenancy, tenancy remains one.
14. The essential ingredients which a landlord/ respondent is required to prove for the purpose of getting an eviction order for bona fide needs are
(i) the petitioner is the owner/ landlord of the suit premises (ii) the suit premises are required bona fide by the landlord for himself and any of his family members dependent upon him (iii) the landlord or such other family members has no other reasonable suitable accommodation.
Ownership as well as existence of landlordtenant relationship :
15. Contention of the petitioner is that the property in question belongs to one Sh. Nazir Khan, however due to some confusion that Sh. Nazir Khan has gone to Pakistan, the property was acquired by Custodian of Evacuee Property. However, later on, the property in question was released E79826/16 Page 12/25 in the favour of Mst. Subhani Begum who was the daughter of Sh. Nazir Khan vide order dated 11.05.1959, copy of which is Ex. P13. Further, a letter in this regard issued by Assistant Custodian is Ex. P14. The petitioner also exhibited on record rent receipts issued by Mst. Subhani Begum in favour of predecessorininterest of present respondents, copy of which is Ex. P5 and Mark P6. It is further stated that Mst. Subhani Begum executed a registered Will, Ex. P15 whereby she distributed her property in favour of her three sons and two daughters. As per that registered Will, the property in question came in the share of Mohd. Mohsin. Said Mohd. Mohsin executed a registered sale deed dated 17.01.1997 qua property in question in favour of the present petitioner. It is also to be noted that after execution of registered sale deed, a registered rectification deed (Ex. P16) dated 16.03.2015 also executed by Mohd. Mohsin in favour of the present petitioner.
16. On the other hand, it is contended on behalf of the respondents that though their predecessorininterest were tenants of Sh. Nazir Khan, however said Sh. Nazir Khan migrated to Pakistan and property was acquired by the Custodian, hence they became tenants of Custodian and infact they paid rent to the Custodian during the year, 195455. They exhibited the rent receipts as Ex. RW1/1 to Ex. RW1/10.
17. A number of legal objections were also raised at the time of final arguments on behalf of the respondents i.e. Mst. Subhani Begum being daughter of owner of the property Sh. Nazir Khan could only get 2/3 rd share of the property as per Shariat. It is further stated that Mst. Subhani Begum being a Muslim cannot bequeath by way of Will more than 1/3 rd of her property as per Shariat, even that can be bequeathed in favour of non relatives only. It is also stated that even in the MCD survey report filed by E79826/16 Page 13/25 the petitioner, name of owner of the property has been mentioned as "Hazi Mohammad Nazir Khan Sahib C/o C.E.P.". It is argued that C.E.P. Stands for Custodian of Evacuee Property, it is also argued that alleged Will of Mst. Subhani Begum has not been proved as per law as none of the attesting witness has been called. It is further argued that the property was the joint property of Sh. Nazir Khan and his brother Sh. Munir Khan and they never partitioned the property, hence the property cannot come into the share of Mst. Subhani Begum. It is also argued that in the letter written to the tenants by Custodian of Evacuee Property to pay the rent to Mst. Subhani Begum, the name of present respondents, or their predecessorininterest does not find mention which clearly shows that they were not the tenants of Sh. Nazir Khan. It is argued that this Court being the Court of Additional Rent Controller cannot decide the issue of ownership of property.
18. On the other hand, it is argued on behalf of the petitioner that the testimony of petitioner remain unrebutted as despite opportunity respondents chose not to crossexamine the petitioner, or his witness. It is further stated that in an another suit for permanent injunction filed by the petitioner, a competent Civil Court has established the title of the petitioner over the suit property.
19. In Rajender Kumar Sharma & Ors. Vs. Leelawati & Ors. 155 (2008) DLT 383, it has been held by Hon'ble High Court of Delhi that "landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than tenant." Further, in Shanti Sharma Vs. Ved Prabha AJR 1987 SC 2028, it has been held by Hon'ble Supreme Court that for the purpose of Section 14 E79826/16 Page 14/25 (1) (e) of DRC Act, "Ownership is not to be understood as absolute ownership but only as a title better than the tenant". From the following facts, it appears that the present petitioner is having better title and is more than tenant qua property in question :
(i) The petitioner has categorically stated that Sh. Nazir Khan was the owner of the property, due to some confusion the property was acquired by Custodian of Evacuee Property. Later on, the said property was released to Mst. Subhani Begum, the petitioner also filed relevant order of Custodian of Evacuee Property in this regard which is Ex. P13 and a letter which is Ex. P14. It is to be noted that the petitioner was not crossexamined at all in the matter, hence it is deemed that his testimony is admitted by the respondents (Reliance being placed on Satender Kumar Sharma Vs. Jitender Kudasiya, 119 (2005) DLT 498).
(ii) The petitioner has also filed on record certified copy of the registered Will whereby Mst. Subhani Begum distributed her property amongst her sons and daughters, though this Will has not been proved as per law, nonetheless the sale deed executed on the basis of that Will by the son of Mst. Subhani Begum has been duly proved on record. Furthermore, a Will can be made by a Muslim qua his/ her entire property even in respect of an heir, the only condition is that other heirs consent to the said bequest after the death of the testator. In the present case, it is not claimed by the respondent that other heirs of Mst. Subhani Begum have not given consent to the said Will. It is also to be noted that in the said Will, shares were given to all the children of Mst. Subhani Begum. Furthermore, even if the said Will has not been proved as per law, nonetheless there is oral testimony of the petitioner qua existence of that Will and consequent execution of sale E79826/16 Page 15/25 deed on the basis of that Will. The presence of certified copy of that Will, certified copy of the sale deed in favour of the petitioner coupled with unrebutted testimony of the petitioner clearly shows that the petitioner is having better title qua property in question than the respondent.
(iii) The ground that no partition had taken place between Sh. Nazir Khan and Sh. Munir Khan is of no value as the respondents' witness had categorically admitted that they were the tenants of Sh. Nazir Khan.
(iv) It is admitted position that the property was once acquired by Custodian of Evacuee Property, however there is copy of public document on record, Ex. P13 whereby entire property no. 1275 and half share of property no. 1277 was released in favour of Mst. Subhani Begum. It is to be noted that property in question is having new no. 2627, while its old number was 1275. From the order it is clear that entire property bearing no.1275 was released in favour of Mst. Subhani Begum. Thus, the argument that respondents may be the tenants of Sh. Munir Khan, or that there was no partition between Sh. Munir Khan and Sh. Nazir Khan is not tenable, further the argument that Mst. Subhani Begum could have become owner of only 2/3 rd share of property is also not of any value as she was having much better title over the property than any other person. Since as per the order entire property no. 1275 was released to Mst. Subhani Begum, than the fact that no letter was written to the predecessorininterest of present respondents to pay rent to Mst. Subhani Begum is inconsequential.
(v) The petitioner has exhibited on record the rent receipts, Ex. P5 issued by Mst. Subhani Begum qua rent paid by predecessorininterest (mother) of the present respondents. The petitioner was not crossexamined E79826/16 Page 16/25 on that aspect and no objection raised qua mode of proof of that document at first stage. Hence, the petitioner has successfully proved on record the rent was paid by mother of the respondents to Mst. Subhani Begum. The fact that the respondents could file rent receipts of the rent paid to Custodian of Evacuee Property only for the period from 195455 and not a single rent receipt thereafter also gives strength to the claim of the petitioner that the property in question was released in favour of Mst. Subhani Begum vide order dated 11.05.1959, Ex. P13. It was due to this release in favour of Mst. Subhani Begum that further rent was not collected by Custodian of Evacuee Property and consequently, no rent receipt was issued.
(vi) The petitioner has got exhibited certified copy of the order passed by Ld. ADJ13 dated 26.10.2016 in case titled as "Nawabuddin Vs. Firdos & Ors." as Ex. RW1/P1. That appeal was from the judgment passed in a injunction suit filed by the present petitioner against the present respondents. In that suit it was held by the Court that petitioner is the landlord of the property in question, though the Court deciding a suit for permanent injunction is not required to decide the title/ ownership of the petitioner, nonetheless the Court has decided the title of the petitioner and come to the conclusion that petitioner has become owner of the property in question. Since both the present parties were parties in that suit as well, hence the finding of the Court is binding on them.
(vii) The claim of the respondents that they have became owners of the property by adverse possession as they have not paid rent to any person for more than 12 years is not tenable as the respondents are themselves claiming that they were the tenants of Sh. Nazir Khan and thereafter, paid rent to Custodian of Evacuee Property as well. Furthermore, it has already E79826/16 Page 17/25 been proved that mother of the respondents paid rent to the Mst. Subhani Begum. It is admitted position of law that once a tenant is always a tenant, even if he stopped paying rent.
(viii) Ld. Counsel for respondents have also claimed that the property in question was always used by the tenants for composite purpose i.e. for residentialcumcommercial purpose as respondents and their predecessor ininterest were/are doing the work of Zardosi from the said premises. It is further stated that the present petition was filed in the year, 2004 i.e. prior to decision in Satyawati Sharma Vs. Union of India 148 (2008) DLT 705 Supreme Court whereby the commercial property came under the purview of Section 14 (1) (e) of DRC Act, hence the present petition is liable to fail on this ground. This contention of Ld. Counsel for respondents is not of much value as from perusal of the file it appears that the premises is on first floor and it is not a shop. It is also admitted that there are only two rooms, or one room and one store room in the property alongwith latrine, bathroom and compound. Further, it is the case of the respondent that respondent Mohd. Rasheed, his sister Smt. Firdos and bhabhi Smt. Shamina are residing in the said property. In these circumstances, when a number of family members of respondents are residing in that property, it cannot be presumed that it is being used as commercial property, further doing the work of handicraft from residence by artisan will not convert the nature of the property from residential to commercial. Thus, the property in question remain to be residential, hence, squarely covered U/s 14 (1) (e) of DRC Act.
20. In view of the abovestated discussions, it can be safely held that the petitioner is the owner of the suit property as he is having better title than the respondents qua suit property.
E79826/16 Page 18/25Nonavailability of reasonably suitable alternative accommodation in Delhi
21. The case of the respondents that the petitioner is already in possession of more premises; the petitioner has got one property bearing no. C31, Batla House, Jamia Nagar, New Delhi having five rooms and the same is lying vacant and the accommodation of the petitioner and his family members in H.No. 2625, Bara Dari Sher Afghan, Ballimaran, Delhi consists of more than one room has no merits as in his crossexamination RW1 has failed to answer, who is the owner of property no. C31, Batla House, Jamia Nagar, New Delhi i.e. whether the petitioner or anyone else. Further, the respondents have merely stated that the accommodation with the petitioner and his family members in H.No. 2625, Bara Dari Sher Afghan, Ballimaran, Delhi consists of more than one room, but they have not filed any documentary proof to prove the same. It is to be noted that testimonies of petitioner's witness on the point of nonavailability of suitable alternate accommodation remain unrebutted.
22. It is settled law that in the judgment titled as Ram Narain Arora Vs. Asha Rani, Civil Appeal No. 8494 of 1995, decided on 31.08.1998, it was held by Hon'ble Supreme Court that if the petitioner has failed to mention the alternative accommodation which is not suitable to the petitioner, therefore, he cannot be faulted with the same if he does not disclose the same.
23. It is also settled law that the landlord is master of his choice and E79826/16 Page 19/25 tenant or the court cannot compel a landlord to choose a particular place against his choice.
24. Therefore, I am of the considered opinion that the petitioner has been able to establish that he does not have any reasonably suitable alternative accommodation in Delhi for himself as well as for his dependent family members for residential purpose, except the tenanted premises.
Bonafide Requirement
25. It would be useful to quote what the Hon'ble Supreme Court has observed on a genuine and bonafide requirement, which is prerequisite for a landlord to succeed in an eviction petition under Section 14 (1) (e) of the DRC Act, 1958 : "12. A perusal of Section 14 of the Act shows that the law has imposed restrictions on the recovery of possession, of any premises by landlord from a tenant notwithstanding any law or contract to the contrary. However, an order for recovery of possession is permissible on one or more of the specified ground. One such ground is the premises let for residential purposes being required bonafide by the landlord for occupation as residence for himself or for any member of his family dependent on him. What is a bonafide requirement is not defined in the Act. The words 'need' and 'require' both denote a certain degree of want with a thrust within demanding fulfilment. 'Need' or 'requirement' qualified by word 'bonafide' or 'genuine' preceding as an adjectiveis an expression often used in Rent Control Laws. 'Bonafide or genuine need' of the landlord or that the landlord E79826/16 Page 20/25 'genuinely requires' or "requires bonafide" an accommodation for occupation by or use for himself is an accepted ground for eviction and such expression is often employed by Rent Control legislation draftsman. The two expressions are interchangeable in practice and carry the same meaning."
13. Chambers 20th Century Dictionary defines bonafide to mean "in good faith: genuine". The word 'genuine' means 'natural; not spurious; real" pure: sincere'. In Law Dictionary, Mozley and Whitley defines bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contra distinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of the landlord and its bona fides would be capable of successfully withstanding the test of objective determination by the Court. The judge of the facts should place himself in the armchair of the landlord and then ask the question to himself - whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be E79826/16 Page 21/25 in the positive, the need is bona fide. The failure on the part of the landlord to substantiate the pleaded need, or in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the Court is satisfied of the bona fides of the need of the landlord for the premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord, his subjective choice shall be respected by the Court. The Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be more suited for the purpose ; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bona fide need or genuine requirement needs a practical approach instructed by the realities of life. An approach either too liberal or too conservative or pedantic must be guarded against."
26. The grounds raised by the respondents that the petitioner does not require the premises in question bonafidely for his own residence and residence of his alleged dependent family members; that the family of the petitioner not consists of members as alleged by him, or they are not dependent upon him; that the accommodation available with the petitioner is sufficient; that the premises in occupation of respondents i.e. only one room, E79826/16 Page 22/25 one store and latrine cannot be said to be sufficient, or suitable to the family of the petitioner as has been detailed by him and that the entire family of the petitioner's father was living in the aforesaid tenanted house of his father, have no merits as the respondents have not crossexamined PW1 and PW2 to controvert and rebut the contention of the petitioner and to prove their abovesaid grounds. Further, in their evidence also the respondents have not filed any documentary proof to prove the abovestated grounds. It is settled law that the landlord is master of his choice and tenant or the court cannot compel a landlord to choose a particular place against his choice as in "Ragavendra Kumar Vs. Firm Prem Machinery & Company", AIR 2000 SC 534, it was observed by Hon'ble Supreme Court that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter (reliance placed upon "Prativa Devi Vs. T.V. Krishnan, (1996) 5 SCC 353). In 1996 RLR 106 titled as "Tejbir Kaur Vs. Devinder Gupta", it was observed by Hon'ble High of Delhi that "when a landlord sues for additional accommodation in the same building, then question of landlord owning another property is not relevant if need of the landlord is genuine and honest."
27. The ground taken by the respondents that the premises in question is situated in Slum area and till a permission U/s 19 of Slums Act is obtained, no eviction petition lies against the respondents has also no merits as in Madan Lal Gupta Vs. Ravinder Kumar, 2000 (2) RCR 698 SC it was held that the Slum Area Improvement and Clearance Act, 1956 is not applicable in respect of eviction petition U/s 14 (1) (e) of DRC Act.
E79826/16 Page 23/2528. The ground taken by the respondents that the premises in occupation of the respondents consists of one room, one store, latrine, small courtyard and terrace and not, two rooms, latrine, bathroom, a kolki and compound and the site plan filed by the petitioner is incorrect has also no merits as the respondents have not filed any site plan. In "R.K. Bhatnagar Vs. Sushila Bhargava", 1986 RLR 232, it was observed by Hon'ble High of Delhi that "if a tenant does not file a site plan showing that site plan filed by the owner is incorrect, then the owner's plan would be assumed to be correct". Placing reliance upon aforesaid authority, I assume that the site plan filed by the petitioner is correct.
29. Moreover, if the petitioner does not use the property for the purposes claimed in the petition, the respondents have a statutory remedy available U/s 19 of the DRC Act to seek reentry.
30. In view of the aforesaid discussion, this court is of the considered opinion that the petitioner has proved all the necessary ingredients of Section 14 (1) (e) of Delhi Rent Control Act, 1958.
31. Accordingly, an eviction order is passed U/S 14 (1) (e) of DRC Act in favour of the petitioner and against the respondents in respect of bearing no. 2627, 1st Floor, above Katra Munir Khan, Baradari, Ballimaran, Delhi consisting of two rooms alongwith latrine, bathroom, a kolki, compound and also terrace of the tenanted premises, as shown in red colour in the site plan. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/s 14 (7) of DRC Act. Parties to bear their own costs.
E79826/16 Page 24/25File be consigned to Record Room.
Announced in the open court (GAJENDER SINGH NAGAR)
on 17.04.2018 Administrative Civil Judge cum
Additional Rent Controller (Central)
Delhi/17.04.2018
(This judgment contains 25 pages in total)
E79826/16 Page 25/25
E79826/16
17.04.2018
Present : None.
Vide separate order, the present eviction petition of the petitioner is allowed. Accordingly, eviction order is passed in favour of the petitioner and against the respondents in respect of premises bearing no. 2627, 1st Floor, above Katra Munir Khan, Baradari, Ballimaran, Delhi consisting of two rooms alongwith latrine, bathroom, a kolki, compound and also terrace of the tenanted premises, as shown in red colour in the site plan. However, this order shall not be executable before the expiry of six months from the date of this order as provided U/s 14 (7) of DRC Act. Parties to bear their own costs.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJcumARC (Central) Delhi/17.04.2018 E79826/16 Page 26/25