Delhi District Court
In Re vs Sh. Nand Lal (Deceased) Through Lrs on 17 November, 2021
IN THE COURT OF MR. DHARMESH SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE/RCT: WEST DISTRICT
TIS HAZARI COURTS: DELHI
RCT No. 55/2019
CNR No. DLWT01-006530-2019
In re:
Sh. Avtar Singh (Deceased)
Through LR Sh. Gursharan Singh
S/o Late Avtar Singh
R/o F-61-A, Virender Nagar
New Delhi - 110058. . . . . . . Appellant
Versus
1. Sh. Nand Lal (Deceased) through LRs
(a) Smt. Nimmi
W/o Late Sh. Nand Lal
(b) Sh. Narender
S/o Late Sh. Nand Lal
Both R/o B-3, Phase-V
Om Vihar, Uttam Nagar
New Delhi - 110059.
(c) Smt. Parveen Singh
W/o Sh. Kamlesh Pratap Singh
D/o Late Sh. Nand Lal
R/o WZ-30-C, Street No.9
Virender Nagar
New Delhi - 110058.
(d) Smt. Seena
W/o Sh. Gopal Kishan
D/o Late Sh. Nand Lal
R/o C-214A, Hari Nagar
New Delhi - 110064.
RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 1 of 21
2. Sh. Harcharan Singh
S/o Late Sh, Avtar Singh
R/o H. No. WZ-52, Shiv Vihar
New Delhi - 110058.
3. Sh. Gurdeep Singh
S/o Late Sh. Avtar Singh
R/o WZ-142, Gali No. 6
Virender Nagar
New Delhi - 110058.
4. Smt. Bhagwant Kaur
D/o Late Sh. Avtar Singh
W/o Sh. Bahadur Singh
R/o 2/130, Subhash Nagar
New Delhi - 110018.
5. Smt. Rajwant Kaur
W/o Sh. Jaspal Singh
D/o Late Sh. Avtar Singh
R/o F-46, Sham Nagar
Vishnu Garden, New Delhi.
6. Smt. Kanwaljeet Kaur
W/o Sh. Jai Singh
D/o Late Sh. Avtar Singh
R/o 20/16, Ashok Nagar
New Delhi - 110018.
7. Smt. Parvinder Kaur
W/o Sh. Amir Singh
D/o Late Sh. Avtar Singh
R/o 20/1, Gali No. 7-A, 1st Floor
Virender Nagar
New Delhi - 110058. . . . . Respondents
RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 2 of 21
Date of filing of Eviction Petition : 17.05.1982
Date of impugned judgment : 23.07.2019
Date of filing of the appeal : 17.08.2019
Date of arguments advanced : 27.10.2021
Date of judgment : 17.11.2021
Appearances:
Mr. C. P. Vig, Advocate for the LR of deceased appellant.
Mr. B. P. Singh, Advocate for the LRs of deceased respondent No.1.
None for respondents No. 2 to 7.
JUDGMENT
1. This judgment shall decide an appeal preferred under Section 38 of Delhi Rent Control Act, 1958 (hereinafter referred to as the 'DRC Act') whereby the appellant Sh. Gursharan Singh as legal heir of deceased tenant Late Sh. Avtar Singh has assailed the impugned judgment dated 23.07.2019 in Eviction Petition bearing RC/ARC No. 25795/16 titled 'Nand Lal (Since Deceased Through his LRs) vs. Avtar Singh (Since Deceased Through his LRs'), decided by Mr. Vishal Pahuja, the then Ld. ACJ/CCJ/ARC (West), THC, Delhi (in short, 'Ld. ARC'), whereby the Eviction petition under Section 14(1)(a) of the DRC Act was held to have been made out and since as per the report of the Civil Nazir it was found that rent had been deposited in terms of order under Section 15(1) of the DRC Act dated 26.02.2013 till date, the benefit under Section 14(2) of the DRC Act was extended to the respondent/tenant (represented through his legal heirs).
BRIEF FACTS PLEADINGS OF THE PETITIONER/LANDLORD
2. The facts of this case present little complicated matrix. Briefly stated, the petitioner Late Sh. Nand Lal, son of Late Sh. Ram RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 3 of 21 Wadhaya filed an Eviction petition under Section 14(1)(a) of the DRC Act against the respondent Late Sh. Avtar Singh, son of Late Sh.Harnam Singh claiming that property bearing House No. F-61/A, Virender Nagar, Jail Road, New Delhi - 110018, as shown in red in the site plan Ex. PW-1/1 was let out by him to the respondent/tenant Sh. Avtar Singh vide rent agreement dated 05.02.1980 Ex. PW-1/2 @ Rs. 180/- per month for residential purposes.
3. The grievance of the petitioner Sh. Nand Lal was that the respondent Sh. Avtar Singh paid rent for few months and thereafter willfully stopped paying rent after August, 1980, and thus he fell in arrears of rent to the tune of Rs. 3,060/- upto 04.02.1982 plus Rs. 540/- upto 04.05.1982 totaling Rs. 3,600/-. He claimed that a demand notice dated 09.02.1982 Ex. PW-1/4 was duly served upon the respondent/tenant but neither the rent was paid nor tendered, and thereafter, the Eviction petition was filed.
PLEADINGS-WRITTEN STATEMENT
4. The Eviction petition was hotly contested by the respondent Sh. Avtar Singh and in his written statement inter alia took preliminary objections to the effect that the petitioner was neither the owner nor landlord of the premises and had no locus standi to file the present petition and/or claim rent from him. He came out with the defence that the premises in question belonged to Smt. Rita Gauri, daughter of Sh. Hari Mohan, resident of 119A, New Colony, Gurgaon, Haryana; and that the petitioner fraudulently encroached upon the suit RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 4 of 21 property owned by Smt. Rita Gauri and represented himself to be the owner of the same, and hence, there was no question of paying or tendering any rent to the petitioner. It was denied that any demand notice dated 09.02.1982 was served upon him.
DEATH OF BOTH THE APPELLANT AND THE RESPONDENT AND IMPLEAIDNG OF THEIR LRS
5. During the course of trial, both the petitioner and the respondent passed away one after the other and their respective legal heirs were impleaded as parties on the judicial record. Suffice to state that except for respondent no.3 Gurdeep Singh, no other legal heirs of deceased respondent Sh. Avtar Singh put appearance or offered any contest, and therefore, have been proceeded exparte vide separate orders dated 05.02.2005 and 29.08.2005.
TRIAL-WITNESSES EXAMINED
6. In so far as trial is is concerned, Smt. Nimmi, daughter of Late petitioner/landlord Sh. Nand Lal examined herself as PW-1, who filed her detailed affidavit in evidence Ex. PW-1/A and relied upon certain documents which are Ex. PW-1/1 to PW-1/5. She was duly cross-examined by the ld. Counsel for the legal heirs of the deceased respondent. On the other hand, Sh. Gursharan Singh was examined as RW-1, who filed his detailed affidavit in evidence Ex. RW-1/A and he relied upon various documents Ex. RW-1/1 to RW-1/4 besides various orders passed by the Courts, which are Ex. PW-1/X, PW-1/Y, PW-1/Z, PW-1/R1 to PW-1/R4, PW-1/AB, PW-1/AC and PW-1/DD. He was also RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 5 of 21 duly cross-examined by the ld. Counsel for the legal heirs of deceased petitioner.
IMPUGNED JUDGMENT
7. The Ld. ARC vide the detailed impugned judgment dated 23.07.2019 on appreciation of evidence brought on the record came to the conclusion that the tenancy premises was admittedly let out by the deceased petitioner/landlord to the deceased respondent/tenant vide rent agreement dated 05.02.1980 Ex. PW-1/2, which fact was further corroborated by the suit for recovery of rent filed by the landlord against the respondent/tenant for recovery of arrears of rent, which was decreed by the Ld. Small Causes Court, Delhi vide judgment and decree dated 21.10.1981, certified copy of which is Ex. PW-1/3. Although the Ld. ARC found that it was established on the record that Smt. Joginder Kaur, wife of deceased Avtar Singh had filed a suit for specific performance, which was decreed in her favour by the competent Court and registered Sale Deed dated 16.08.1989 Ex. RW- 1/2 was executed in her favour, the Ld. Trial Court observed that the conditions of Section 111 of Transfer of Property Act were not satisfied and relying on decision in Santlal v. Avtar Singh, 1985 RLR (NSC) 47, it was observed that the only recourse available to the tenant was to handover the vacant possession of the premises to the landlord as he was estopped from denying the title of landlord in terms of Section 116 of the Indian Evidence Act, hence it was held that there existed a relationship of landlord and tenant between the parties. Further, finding that there was no dispute with regard to rate of rent being Rs. 180/- per RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 6 of 21 month and the service of demand notice dated 05.02.1980 Ex. PW-1/4 had been duly proved by the AD Card and postal receipts Ex. PW-1/5, the Ld. ARC found that all the ingredients of Section 14(1)(a) of the DRC Act had been proven successfully by the petitioner / landlord. Accordingly, ld ARC directed the respondentS/legal heirs of deceased respondent to pay arrears of rent w.e.f. 05.10.1980 till date @ Rs. 180/- per month alongwith 15% Simple Interest per annum, within 30 days from the date of judgment providing that the amount already deposited by the respondent/tenant during the pendency in terms of order under Section 15(1) of the DRC Act dated 26.02.2013 be adjusted. At the same time since it was found that Civil Nazir submitted a report that the arrears of rent has been deposited by the respondent/tenant and thereafter his legal heirs in a timely and dutiful manner, benefit under Section 14(2) of the DRC Act was extended to them.
GROUNDS OF APPEAL:
8. The impugned judgment passed by the Ld. ARC has been assailed by the legal heirs of the deceased tenant in the present appeal inter alia on the grounds: that the Ld. ARC failed to appreciate the order dated 16.10.2003 passed by the Hon'ble High Court whereby the earlier orders dated 04.06.1984 and 09.07.1984 passed under Section 15(1) of the DRC Act were set aside on the basis of subsequent development, which order had substantial bearing on the outcome of the case; and that the Ld. ARC failed to appreciate that on the basis of several judgments inter-se the parties and otherwise involving the parties with some other persons, the certified copies of which have RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 7 of 21 been filed, left no doubt that the landlord had lost all right, title or interest in the property in question; and that the Ld. ARC failed to appreciate that Smt.Joginder Kaur, wife of late Sh. Avtar Singh had become owner of the property in question pursuant to judgment and decree passed in her favour and subsequently by virtue of registered Sale Deed executed in her favour through Local Commissioner appointed by the Court; and that the Ld. ARC failed to appreciate that there has been a merger of interest as per Section 111 of Transfer of Property Act by virtue of purchase of property in question and the petitioner / landlord was left with no legal right to claim himself to be the landlord; and that on the death of Sh. Avtar Singh and later Smt. Joginder Kaur, the legal heirs including the appellant became owners of the property in question and their tenancy rights merged into ownership rights acquired on the death of their predecessor in interests; and that the Ld. ARC failed to appreciate that principles of estoppel enshrined under Section 116 of the Indian Evidence Act was not without exceptions and since the tenancy was only for 11 months, which had been determined by efflux of time, the said provisions was not applicable to debar the appellant/tenant from challenging the title of the petitioner/landlord.
DECISION
9. I have given my thoughtful consideration to the elaborate submissions made by the Ld. Counsel for the parties at the Bar. I have also meticulously perused the instant appeal file as also the Trial Court Record including the oral and documentary evidence on the record. No case law has been cited by the Ld. counsel for the parties.RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 8 of 21
10. Section 14 (1) (a) and 14 (2) of the DRC Act provides as under:-
"Section 14 : Protection of tenant against eviction - (1) Not withstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any Court or Controller in favour of the landlord against a tenant.
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more grounds only.
Section 14 (1) (a) : that the tenant has neither paid nor tendered the whole arrears of the rent legally recoverable from him within two months of the day on which a notice of demand for the arrears of rent has been served of him by the landlord in the manner provided in Section 106 of the Transfer of Property Act, 1881 (4 of 1882).
Section 14 (2) :No other for the recovery of possession of any premises shall be made on the ground specified in clause (a) of the proviso to sub-section (1) if the tenant makes payment or deposit as required by section 15:
Provided that no tenant shall be entitled to the benefit under this sub-section, if, having obtained such benefit once in respect of any premises, he again makes a default in the payment of rent of those premises for three consecutive months."
11. In order to succeed in application under Section 14 (1) (a) of the DRC Act, it is well settled that it is incumbent upon the petitioner to prove the basic foundation of the case that there exists relationship of landlord and tenant between the parties. Section 2(e) of the DRC Act defines the term 'landlord' to mean "a person who, for the time being is receiving, or is entitled to receive, the rent of any premises, whether on his own account or on account of or on behalf of, or for the benefit of, any or who would so RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 9 of 21 receive the rent or be entitled to receive the rent, if the premises were let to a tenant."
12. A bare perusal of the aforesaid provisions would show that the landlord is a person, who is entitled to demand and receive the rent of any premises either on his own account i.e. where he is owner or co-
owner or for that matter having any right, title or interest in the premises including settled possessory rights. The landlord is also a person, who is entitled to receive and demand rent of any premises from the tenant on behalf or for benefit of any other person as an agent, trustee, guardian or a receiver. Primarily, a landlord is one who has let out premises to a tenant. However, the rights as an owner or/and landlord are, generally speaking, transferable. In the instant case, it is admitted case that the tenancy premises was let out by the deceased petitioner Nand Lal to deceased tenant Avtar Singh vide rent agreement dated 05.02.1980 Ex.PW-1/2 at a monthly rent of Rs. 180/-. Ld. Counsel for the LRs of respondent supporting the impugned judgment rightly canvassed that during the course of trial, based on such agreement and also for a decree passed by Small Causes Court dated 31.10.1981, certified copy of which is Ex.PW-1/3, which was a suit for recovery filed by the landlord for recovery of arrears of rent, an order under Section 15 (1) of the DRC Act was passed dated 04.06.1984 directing the tenant Avtar Singh to pay or deposit arrears of rent at the agreed rate. This was challenged in RCA No. 605/1984 before the Ld. Rent Control Tribunal, which appeal was dismissed vide order dated 09.07.1984 and SAO No. 247/1984 was preferred before the Hon'ble High Court of Delhi, which was dismissed vide order dated 09.08.2000.
RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 10 of 2113. However, ld. Counsel for the appellant pointed out that after the predecessor-in-interest of the present appellant i.e. the deceased tenant Avtar Singh claimed that a registered Sale Deed had been executed in favour of his wife Joginder Kaur dated 16.08.1987 Ex.RW-1/2, another application was moved in SAO No. 247/1984 to bring on record subsequent events and seeking modification of impugned order under Section 15(1) of the DRC Act dated 04.06.1984, which was disposed off vide order dated 16.10.2003 by the Hon'ble Judge of the High Court of Delhi thereby remanding the matter back for a fresh decision after taking into account the subsequent development. It is a matter of record that on the matter being remanded back to the learned trial Court, the then Ld. ARC vide order dated 26.02.2013 found no grounds to review the earlier order holding that the respondent Avtar Singh was still a tenant and liable to pay rent to the landlord. It would be expedient to quote paragraph (7) of the said order dated 26.02.2013, which has been relied upon by the learned trial Court in the passing the impugned order dated 23.07.2019, which reads as under:
"Entire para no.7 of the order dated 26.02.2013 passed by the Ld. Predecessor of this Court is quoted as below:-
'So, after taking into consideration facts and circumstances of the case, I am of the considered view that though conveyance deed has been executed in favour of wife of respondent but it is clear cut mentioned in para 3 of the conveyance deed and sale deed that physical possession has not been handed over to the wife of respondent as there was a tenant namely Avtar Singh (Respondent) who was the husband of Joginder Kaur. Moreover, it is not out of place to mention here that respondent had expired and wife of respondent had been impleaded in the present case as LRs of respondent and not the owner of property in question and as such status of possession RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 11 of 21 of respondent as well as his wife over the property in question is still a tenant. Hence, I am of the considered view that ownership of the petitioner can only be challenged after handing over vacant possession of the suit premises in view of judgment title Santlal v. Avtar Singh reported as 1985, RLR (NSC) 47 and suit for possession can be filed against the petitioner as such respondent is liable to pay or deposit in the account of petitioner, subject to providing account details by the petitioner, under Section 15(1) DRC Act, entire arrears of rent @ Rs.180/- per month w.e.f. 05.10.1980 till date within one month and thereafter to continue to deposit the subsequent rent month by month by 15th day of each succeeding month of English Calender. It is made clear, if any arrears of rent had been paid, the same shall be adjusted and considered at the point of final disposal of the case.' In view of the aforesaid order the same contentions raised by the Ld. Counsel for respondent no.3 cannot be considered again. The judgments relied upon by the Ld. Counsel for respondent no.3 does not apply in the presnt facts and circumstances of the case hence, not helpful to the responded no.3. As such this Court does not have to deal with the aspect of title/ownership of the suit property."
14. A bare perusal of the aforesaid order would show that the learned trial Court was of the view that in terms of Section 116 of the Indian Evidence Act, it was not open to the tenant to deny the title of the landlord and he was duty bound to surrender possession of the tenancy premises, and thereafter, claim his own title or ownership in the same. Now, before we proceed to discuss section 116 of the Indian Evidence Act and the relevant case law on the subject, it must firstly be noted that nature and character of the tenancy premises has undergone substantially changes since the inception of such tenancy. PW-1 Nimmy in her cross-examination testified that tenant Avtar Singh was RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 12 of 21 leased out one room with tin-shed but subsequently there were now existing two rooms constructed by the respondent No.3 i.e. the present appellant Gursharan Singh. PW-1 was unable to vouch for the correctness of the site plan Ex.PW-1/1. Secondly, it was the own case of the petitioner/landlord Nand Lal that the suit property was initially owned by late Sh. Ram Gopal. It is in the testimony of RW-1 that late Sh. Ram Gopal sold the property in question to Sh. Ishwar Dass as per sale deed dated 30.04.1969; and then Sh. Ishwar Dass later on sold the same to Smt. Sumitra Devi as per sale deed dated 26.06.1970 and Smt. Sumitra Devi sold the same to Smt. Reetu Gauri as per sale deed dated 23.07.1971 Ex.RW-1/P-1 and lastly Smt. Reeta Gauri agreed to sell the property in question to Smt. Joginder Kaur as per agreement to sell dated 13.08.1980. It is pertinent to mention that the tenant stopped paying rent to the landlord after August, 1980 as per the petitioner/landlord. It is also in evidence of RW-1 that Smt. Joginder Kaur filed a suit for specific performance against Smt. Reetu Gauri, which was decreed vide judgment dated 11.12.1987 and a registered sale deed was executed in favour of Smt. Joginder Kaur in execution of such decree through Local Commissioner dated 16.08.1989 Ex.RW-1/2.
15. Although, the plea by Ld. counsel for the appellant that the petitioner Nand Lal had fraudulently encroached upon the plot of land in question and dishonestly misrepresented himself as owner of the plot, and no estopple could be invoked if rent was paid under a bonafide mistake does not weigh too much in his favour, all said and done, what is also brought on the judicial record is that the petitioner Nand Lal filed a suit No. 582/2002 on 12.09.1980 against Smt. Sumitra Devi and Ram RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 13 of 21 Gopal seeking cancellation of sale deed dated 23.07.1971 executed by Smt.Sumitra Devi in favour of Smt. Rita Gauri in respect of the suit property wherein Smt. Joginder Kaur was also added as a party at a later stage in legal proceedings and the said suit was dismissed vide Judgment and decree dated 18.03.2005 Ex. PW-1/R-1 by the Court of Sh. Sameer Bajpai, the then Ld. Civil Judge, Delhi. It is also a matter of record that the petitioner/plaintiff Nand Lal then filed a Civil Appeal against the impugned Judgment dated 18.03.2005, which was also dismissed in RCA No. 30/2005 by the Court of Sh. A.K. Kuhar, the then Ld. ADJ, Delhi vide judgment dated 24.04.2012 Ex. RW-1/P-1 and said order became final and not challenged by the plaintiff/petitioner Nand Lal.
16. The testimony of RW-1 Gursharan Singh was not challenged that the petitioner Nand Lal filed a suit for specific performance against the original owner Sh. Ram Gopal claiming that he purchased the property in question from him vide Agreement to Sell dated on 05.01.1979 and had been in actual and physical possession since 1969 but the same was dismissed as withdrawn. The petitioner Nand Lal then also filed suit for declaration in 1985 bearing Civil Suit No.93/1985 against the original owner Sh. Ram Gopal seeking declaration of himself as owner qua the suit property but the same was also dismissed as withdrawn on 25.02.1991, copy of which is Ex.PW-1/R-3.
17. It is also pertinent to mention that deceased petitioner Nand Lal had also filed a Suit No. 934/02 against the tenant Sh. Avtar Singh and his wife Smt. Joginder Kaur claiming that 70 sq. yards out of 200 Sq. yards of the Suit property had been handed over by the defendants to some third persons and he sought possession with RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 14 of 21 regard to 70 sq. yards of land, which came to be dismissed by the Court of Sh. Pulatsya Parmachala, the then Ld. Civil Judge, Delhi vide judgment dated 10.12.2004 Ex. PW-1/2.
18. As regards dispute raised with regard to identity of the property, a perusal of the certified copy of judgment dated 24.04.2012 Ex. PW-1/R-1 by the Ld. ADJ-01 in RCA no. 30/05 would show that a categorical observation was recorded that Sh. Ishwar Dass purchased property from Sh. Ram Gopal vide registered Sale Deed dated 30.04.1969 at the office of Sub - Registrar vide Registry No. 1805. Sh.Ishwar Dass sold the said property to Smt. Sumitra Devi on 26.06.1970 Ex. PW 2/2. I do not find in the record any copy of Sale Deed executed by Sh. Ram Gopal in favour of Sh. Ishwar Dass but it does appear on perusal of judgment dated 01.05.1998 by Sh. Bharat Parashar, the then Ld. MM in FIR No. 584/80 under Section 420/468 IPC PS Janak Puri, which criminal proceedings were launched against the accused Nand Lal, wherein it was observed that on the sale deed executed by Sh. Ishwar Dass in favour of Smt. Sumitra Devi the plot of land was initially mentioned as F. No. 20/5 measuring 200 sq. yards out of Khasra No. 783 Virender Nagar, Village Tihar, Delhi. However, thereafter an amended Sale Deed was executed by Sh. Ishwar Dass and Ram Gopal on 03.05.1971 and the earlier Sale Deeds dated 25.04.1969 and 26.06.1970 were rectified so as to read number of the property as F-61/A instead of F 20/5.
19. In view of the aforesaid background of the instant case, the question that arises is: whether this Court sitting as an Appellate Court/Tribunal can take into consideration the subsequent events which RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 15 of 21 have occurred and proven on the record during the trial which ipso facto indicates a departure from the cause of action existing as on the date of filing of the Eviction petition? The answer is in the affirmative and in this regard reference can be invited to decision in the case of Om Prakash Gupta v. Ranbir B. Goyal, [2002] 2 SCC 256, wherein while dealing with the power of the Court to take note of subsequent events and then to grant, deny or modify the relief sought for in the plaint, the Hon'ble Supreme Court held as under:-
". . . . . . The ordinary rule of civil law is that the rights of the parties stand crystalised on the date of the institution of the suit and, therefore, the decree in a suit should accord with the rights of the parties as they stood at the commencement of the lis. However, the Court has power to take note of subsequent events and mould the relief accordingly subject to the following conditions being satisfied :
(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted; (ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; (iii) that such subsequent event is brought to the notice of the Court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise. . . . . . . . . . . . . . . . .
Such subsequent event may be one purely of law or founded on facts. In the former case, the Court may take judicial notice of the event and before acting thereon put the parties on notice of how the change in law is going to affect the rights and obligations of the parties and modify or mould the course of litigation or the relief so as to bring it in conformity with the law. In the latter case, the party relying on the subsequent event, which consists of facts not beyond pale of controversy either as to their existence or in their impact, is expected to have resort to amendment of pleadings under Order 6 Rule 17 of the CPC. Such subsequent event the Court may permit being introduced into the pleadings by way of amendment as it would be necessary to do so for the purpose of determining real questions in controversy between the parties."
RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 16 of 2120. In the light of said proposition of law reverting to the instant case, it would be expedient to refer to the provision of Section 111 of the Transfer of Properties Act which provides as under:-
"111. Determination of lease.-- A lease of immoveable property determines--(a) by efflux of the time limited thereby:
(b) where such time is limited conditionally on the happening of some event--by the happening of such event:
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event--by the happening of such event:
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right:
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them:
(f) by implied surrender:
(g) by forfeiture; that is to say, (1)in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter 1***; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 2[or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in 1[any of these cases] the lessor or his transferee 2[gives notice in writing to the lesseeof] his intention to determine the lease:
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other."
21. Hence, a bare perusal of Section 111 (g) (2) would show that the determination of lease also take place when lessee renounces RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 17 of 21 his character as such by setting up a title to a third person or by claiming a title to himself. In the instant case, in view of the contextual matrix discussed above, the petitioner Nand Lal clearly lost his title to the premises in question consequent to a spate of litigation filed by him, and the petitioner Nand Lal miserably failed to confirm his title to the premises in question at all till his death on 25.12.2014 and thus on execution of registered Sale Deed in favour of Smt. Joginder Kaur wife of tenant Avtar Singh dated 16.08.1989 Ex. RW-1/2, the tenant Avtar Singh was well within his legal right to renounce his status as that of tenant under Nand Lal.
22. In for far as Section 116 of the Indian Evidence Act is concerned it is not the whole law governing jural relationship between landlord and tenant during the continuance of tenancy and there are good numbers of exceptions. It would be expedient at this stage to refer to provisions of Section 116 of the Indian Evidence Act, which provides as under:-
"116. Estoppel of tenant; and of licensee of person in possession.--No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given."
23. In the case of Tej Bhan Madan v. IInd ADJ, (1988) 3 SCC 137, at page 141 it was observed that:
"11. Shri Asthana may be right in his submission that a tenant who, without disclaiming his own position as tenant, however, seeks proof of title from an alleged assignee of the RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 18 of 21 reversion cannot be held to have denied the landlord's title. It may also be true that the estoppel of a tenant is primarily in relation to his landlord who had let him into possession and that, accordingly, such tenant is not precluded from questioning the alleged derivative title of a person claiming to be the successor to, or assignee of, the reversion, for want of proof of the vestitive facts on which the claim for attornment is based. The Rule of estoppel does not also preclude a tenant from contending that the landlord's title has since terminated by transfer or otherwise or has been lost or defeated by title paramount. In English case law there was some authority for the proposition that the tenant was only estopped from denying his landlord's title only if at the time he took the lease from the landlord he was not already in possession of the land.
24. Another case that can be referred on the subject decided by the Hon'ble Supreme Court of India is titled J. J. Lal Pvt. Ltd. & Ors. v. M. R. Murali & Anr., [2002] 3 SC 98 wherein it was observed as under :-
"What amounts to denial of title, and whether such denial is bona fide or not, are the questions to be determined in the facts and circumstances of each case. As a general rule the vulnerability of denial of title by the tenant shall be tested by reference to rule of estoppel contained in Section 116 of the Evidence Act which estoppes the tenant from denying the title of the landlord at the commencement of the tenancy and the estoppel continues to operate so long as the tenant does not surrender possession over the tenancy premises to the landlord who inducted him in possession. The tenant is not estopped from denying the title of the landlord if it comes to an end subsequent to the creation of the tenancy nor is he estopped from questioning the derivative title of a transferee of his landlord. However, the rule of estoppel contained in Section 116 of the Evidence Act is not exhaustive......."
25. In another case titled Kamaljit Singh v. Sarabjit Singh, (2014) 16 SCC 472 : (2015) 3 SCC (Civ) 682 : 2014 SCC OnLine SC 662 at page 479, it was held:
"16. A three-Judge of this Court in Sri Ram Pasricha v. Jagannath [Sri Ram Pasricha v. Jagannath, (1976) 4 SCC RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 19 of 21 184] reiterated the principle that a tenant in a suit for possession was estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The title of the landlord, declared this Court, even otherwise irrelevant in a suit for eviction of the tenant. The only exception to the rule of estoppel as stated in Section 116 (supra) may be where the tenant is validly attorned to the paramount title- holder of the property or where that the plaintiff landlord had, during the intervening period, lost his title to the property.
26. In so far as the Sant Lal v. Avtar Singh, AIR 1985 SC 857 is concerned; the facts of the said case are clearly distinguishable. It was a case where the original tenant had given a portion of the tenancy premises on licence to another person and during the pendency of the litigation the licensee bought the licensed portion of the leasehold property from the original owner/Lessor. It was in such contextual facts and circumstances that it was held that licence had been terminated well in time by the Licensor and thus the licensee was duty bond to surrender the possession of the property to the licensor, and it was not open to the licensee to set up title to the property in himself or anyone else. The said ratio was in the context of "licence" and not "lease". As per section 105 of the Transfer of Property Act, lease is defined as a transfer of a right to enjoy some immovable property, while elementary as it may look, licence is a mere permission to use a property.
27. In view of the foregoing discussion, I find that taking into consideration the events subsequent to the filing of the eviction petition which prove that the petitioner landlord lost his entitlement to demand and collect rent due to transfer of ownership rights in favour of wife of the tenant and the bonafide defence put forth by the appellant viz. legal RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 20 of 21 heirs of deceased tenant that his wife became the paramount title holder and thus he renounced his character as a tenant in terms of Section 111 (g) (2) of the Transfer of Property Act, the impugned judgment dated 23.07.2019 cannot be sustained in law. Accordingly, the present appeal is allowed and the impugned judgment dated 23.07.2019 is set aside thereby providing that there is no relationship and landlord between the parties after August, 1980. In the facts and circumstances of the case, the parties are left to bear their own costs. However, the appellant shall be entitled to be released the entire amount of arrears of rent deposited by him in the Court as per the previous order dated 26.02.2013 passed under section 15(1) of the DRC Act and if the same has already been withdrawn by the respondents/LRs of deceased Nand Lal, then the whole amount so withdrawn shall be reimbursed to the appellant/LR of deceased Avtar Singh within 45 days from today failing which the appellant/LR of deceased Avtar Singh shall be entitled to claim the same with interest @ 18 per annum.
28. The Trial Court Record be sent back alongwith a copy of this judgment. The appeal file be consigned to the Record Room.Digitally signed by DHARMESH
DHARMESH SHARMA
SHARMA Date: 2021.11.18
20:30:06 +0530
Announced in the open Court (DHARMESH SHARMA)
on 17th November, 2021 Principal District & Sessions Judge /
RCT (West)
Tis Hazari Courts: Delhi
RCT-55/2019 Avtar Singh (Deceased) Through LR vs. Nand Lal (Deceased) Through LRs. & Ors. Page 21 of 21