Delhi District Court
Sri Kishan vs Smt. Sunita Panwar on 6 January, 2023
IN THE COURT OF SHRI GIRISH KATHPALIA,
PRINCIPAL DISTRICT & SESSIONS JUDGE (HQs)
& RENT CONTROL TRIBUNAL (CENTRAL)
TIS HAZARI COURTS, DELHI.
RCT NO. 49/2019
CNR No. DLCT010044902019
SRI KISHAN
S/o LATE SHRI TOTA RAM
R/o H.NO. 2785, GALI ARYA SAMAJ
BAZAR SITA RAM, DELHI
......APPELLANT
VERSUS
SMT. SUNITA PANWAR
W/o SHRI CHUKHAN SINGH
R/o H.NO. 2785, GALI ARYA SAMAJ
BAZAR SITA RAM, DELHI
......RESPONDENT
AND
RCT NO. 50/2019
CNR No. DLCT010044912019
RAM SWAROOP
(SINCE DECEASED)
THROUGH THEIR LEGAL HEIRS
1. LALIT KUMAR
S/o LATE SHRI RAM SWAROOP
R/o 1865, 3rd FLOOR, TAKHT WALI GALI
KUCHA PATI RAM, DELHI6
RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar
RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 1 of 10 pages
Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date: 2023.01.06
14:52:28 +0530
2. SEEMA
D/o LATE SHRI RAM SWAROOP
W/o SHRI DINESH KUMAR
R/o A136, GALI NO. 21/2, RAMA GARDEN
KARAWAL NAGAR, DELHI94
3. MEENA
D/o LATE SHRI RAM SWAROOP
R/o 1865, 3rd FLOOR, TAKHT WALI GALI
KUCHA PATI RAM, DELHI6
4. NAVEEN
S/o LATE SHRI RAM SWAROPP
R/o 1865, 3rd FLOOR, TAKHT WALI GALI
KUCHA PATI RAM, DELHI6
......APPELLANTS
VERSUS
SMT. SUNITA PANWAR
W/o SHRI CHUKHAN SINGH
R/o H.NO. 2785, GALI ARYA SAMAJ
BAZAR SITA RAM, DELHI
......RESPONDENT
Date of filing :04.04.2019
First date before this court :02.07.2019
Arguments concluded on :19.12.2022
Date of Decision : 06.01.2023
APPEARANCE : Shri M.S. Khan, counsel for appellant
Shri Vinay Gupta, counsel for respondent
RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar
RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 2 of 10 pages
Digitally signed
by GIRISH
GIRISH KATHPALIA
KATHPALIA Date: 2023.01.06
14:52:40 +0530
COMMON JUDGMENT
1. These two appeals, brought under Section 38 of the Delhi Rent Control Act have been taken up together for disposal on account of same legal and factual matrix pertaining to two different portions of the subject premises. I heard learned counsel for both sides and examined the trial/execution court record.
2. Briefly stated, circumstances leading to these two appeals are as follows.
2.1 The present respondent claiming herself to be the owner and landlord in respect of residential premises bearing No. 2785, Gali Arya Samaj, Bazar Sita Ram, Delhi (hereinafter referred to as "the tenanted premises") filed eviction petition under Section 14(1)(e) of the Act against her tenants, also alleging that the tenants Shri Moolchand and Shri Chet Ram had unauthorizedly sublet portions of the tenanted premises. The said eviction petition successfully culminated into eviction order dated 16.05.2008. During pendency of execution proceedings, the present appellant Shri Sri Kishan and the now deceased appellant Shri Ram Swaroop filed objections, which were taken through trial and finally dismissed by way of the orders impugned in the present appeals.
2.2 The objector Shri Sri Kishan claimed that his grandfather late Shri Babu Ram had been originally inducted as a RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 3 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2023.01.06 14:52:52 +0530 tenant in the tenanted premises by late Shri Sarju Prasad; that after demise of Shri Babu Ram, the tenancy devolved upon his three sons including late Shri Tota Ram, all three of whom were accepted as separate tenants by late Smt. Dayawati, widow of Shri Sarju Prasad; that the objector, being son of late Shri Tota Ram is a tenant in a portion consisting of two rooms, common courtyard, toilet and common roofrights of the tenanted premises; that the present respondent colluded with her relative Shri Satish and obtained eviction order pertaining to the tenanted premises, which consists of more than 2530 rooms occupied by different tenants including the present appellant; and that he is not an unauthorizedly inducted subtenant but a tenant in his individual capacity.
2.3 The now deceased objector Shri Ram Swaroop claimed that his father late Shri Inder Singh was tenant in the tenanted premises under late Shri Sarju Prasad and subsequently Smt. Dayawati; that after death of Shri Inder Singh, he became a tenant in the tenanted premises; that the tenanted premises are occupied by about 100 persons, constituting 17 families, each of whom is a direct tenant under Shri Sarju Prasad and subsequently Smt Dayawati; and that he is not an unauthorized subtenant but a tenant in individual capacity.
2.4 The present respondent filed replies to the objections of the present appellants and denied the relationship of landlord and tenants between the parties. In reply to the objections, the present RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 4 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2023.01.06 14:53:03 +0530 respondent also made a reference to previous litigations between the decree holder, the judgment debtors, the previous owners and the objectors. The present respondent pleaded that Shri Babu Ram and Shri Inder Singh were unauthorizedly inducted subtenants.
2.5 On the basis of rival pleadings, trial on both sets of objections were carried out and thereafter by way of the impugned orders both sets of objections were dismissed, holding that the appellants had failed to establish their independent title as tenant under the present respondent in the tenanted premises, as such they were bound by the eviction order. Hence, the present appeals.
3. During final arguments, learned counsel for appellants took me through the above record and contended that the orders impugned in these appeals are not sustainable in the eyes of law. It was argued on behalf of the appellants that since the judgment debtor did not challenge the eviction order, allegation of the appellants that it was a collusive litigation stands established. Learned counsel for appellants fairly admitted that the appellants have no document to establish their status as tenant in the tenanted premises, except MCD house tax record Mark DHW1/X naming predecessors of the appellants as tenant.
4. On the other hand, learned counsel for respondent supported the impugned orders and contended that the appeals are devoid of merit. Learned counsel for respondent argued that the RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 5 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2023.01.06 14:53:13 +0530 eviction petition remained pending from the year 2005 to 2008 only on the issue of leave to defend, so it cannot be a case of collusion. It was also argued on behalf of respondent that entries in MCD Record cannot be treated as proof of tenancy.
5. In rebuttal arguments, learned counsel for appellants contended that the MCD record Mark DHW1/X ought not to have been completely ignored by the trial court.
6. The objections filed by the appellants which led to the impugned orders have to be considered under Section 25 of the Delhi Rent Control Act, which starts with non obstante clause. Scope of objections under Section 25 of the Act is quite limited in the sense that proviso to the same gives scope to object to the execution of eviction order to only those persons who hold independent title to the subject premises.
7. The undisputed legal position relevant for present purposes is that where the oral and/or documentary evidence on record establish the claim of the objector as independent tenant under the decree holder, the objections deserve to be sustained; that a person who claims to be the real tenant of the landlord as distinguished from the person against whom the order for possession has been passed in favour of the landlord claims a title which is "independent" within the meaning of the proviso to Section 25 of the Delhi Rent Control Act; and that the eviction order is binding only RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 6 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2023.01.06 14:53:23 +0530 on the person against whom it was passed on the assumption that such a person was a tenant of the landlord and is not binding on a person who claims to be a tenant of the landlord in his own right and who does not claim through the person against whom the order was passed; that mere possession of the tenanted premises would neither lend any legitimacy nor confer any rights upon the person seeking impleadment as necessary party in the eviction proceedings; that sub tenants cannot be said to be necessary party to the eviction proceedings and nonjoinder of subtenants would not make the eviction decree nullity or inexecutable against the subtenant; and that by a unilateral action of the tenant of surrendering his tenancy in favour of a third party by delivering possession of the tenanted premises, no new tenancy is created which may legally bind the landlord. {Prem Raj Chaudhary vs R.C. Ohri, 191 (2012) DLT 292;
Vidyawanti vs Takan Dass, 1974 RCR 47; Chhotey vs Mohd. Yasin, 1977 RLR 484; and H. Seshadri vs K.R. Nataranjan, 2003 (3) SCR 505; Richard Lee vs Girish Soni, 2014 (145) DRJ 709; Rupchand Gupta vs Raghuvanshi Pvt. Ltd., AIR 1964 SC 1889; Bharat Insulation Company vs Dr. Suraj Prakash, 2015 IX AD (Delhi) 268; and Munshi Ram vs Bhoj Ram through LRs, 2012 (129) DRJ 89}
8. In the case of Rattan Devi vs. Bal Kishan, 14(1978) DLT 183, the landlady Rattan Devi obtained eviction order against the respondent Bal Kishan and in execution thereof, corespondent Parmeshwari Das was thrown out of the subject property. RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 7 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2023.01.06 14:53:35 +0530 Application was filed by Parmeshwari Das for restoration of possession on the ground that Rattan Devi had obtained eviction order in collusion with Bal Kishan Das. The Rent Controller allowed the application and directed restoration of possession to Parmeshwari Das. Appeal against the said order was dismissed by the Rent Control Tribunal, so Rattan Devi filed second appeal before the Hon'ble Delhi High Court. The Hon'ble Delhi High Court held that mere possession could not save Parmeshwari Das from eviction in view of Section 25 of the Act since any person found in possession of the premises, in respect of which the interest of the tenant has been determined and recovery of possession in favour of landlord has been made has to be thrown out unless the person in possession can show an independent title to such premises.
9. In the present case, as mentioned above, admittedly the appellants have no document to establish their claim of tenancy with respect to the tenanted premises.
10. In his crossexamination as OW1, the appellant Shri Sri Kishan stated that Shri Gopi Chand, munshi of Smt. Dayawati used to collect rent from them, but he had never seen any authority letter in favour of Shri Gopi Chand; that he could not produce any document to show that he or his father or his grandfather Shri Babu Ram were ever tenant in the tenanted premises; that since the date of his knowledge about the eviction petition in 2008, he never filed any proceedings for deposit of user charges pertaining to the tenanted RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 8 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date: 2023.01.06 14:53:46 +0530 premises. Similarly, the other objector Shri Ram Swaroop in his crossexamination as O2W1 admitted that he could not produce any document reflecting that his father Shri Inder Singh had been inducted as a tenant in the tenanted premises by Shri Sarju Prasad or Smt. Dayawati. The other official witnesses got summoned and examined by the appellants only produced the official record as regards the appellants being occupants of parts of the tenanted premises.
11. The only document on which learned counsel for appellants placed reliance is the MCD record marked as Mark DHW1/X. The same consists of photocopies of three pages of the inspection book of the MCD, which were not proved in accordance with law. Even otherwise, the said MCD record only establishes at the most status of Shri Babu Ram and Shri Inder Singh as two of the occupants of the tenanted premises. Entries made in the said inspection register of MCD in the course of survey for house tax demand cannot be treated as documentary evidence of tenancy. In that regard, reference may be drawn from the judgment of Hon'ble Delhi High Court in the case titled Kailash Kumar vs. Dr. R.K. Kapoor, 1994(2) RCR 36.
12. There is not even shred of reliable evidence documentary or even oral to establish relationship of tenancy between the parties. It is also nobody's case that the appellants or even their predecessors are or were owners of the tenanted premises.
RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 9 of 10 pages Digitally signed by GIRISH GIRISH KATHPALIA KATHPALIA Date:
2023.01.06 14:53:57 +0530
13. In view of above discussion, I am unable to find any infirmity in the impugned order, so the same is upheld and consequently, both these appeals are dismissed.
14. Trial court records be sent back alongwith copy of this judgment. Appeal files be consigned to records leaving the parties bear their own costs.
Digitally signed by GIRISH GIRISH KATHPALIA
KATHPALIA Date:
Announced in the open court 2023.01.06
14:54:07 +0530
on this 06th day of January, 2023
(GIRISH KATHPALIA)
Principal District & Sessions Judge (HQs)
Rent Control Tribunal (Central)
Tis Hazari Courts, Delhi
RCT no. 49/2019 Sri Kishan vs. Smt. Sunita Panwar RCT no. 50/2019 Ram Swaroop vs. Smt. Sunita Panwar Page 10 of 10 pages