Delhi District Court
Shri Virender Singh vs Sh. Rishi Prakash @ Munna Pahlwan on 2 April, 2016
IN THE COURT OF SH. TARUN YOGESH
SCJCUMRC (CENTRAL), TIS HAZARI COURTS, DELHI
E. No : 184/2013
Unique ID No : 02401C0061272013
Shri Virender Singh,
S/o Late Sh. Nahar Singh,
R/o B1525, Shastri Nagar,
Delhi. ........ Petitioner.
Versus
Sh. Rishi Prakash @ Munna Pahlwan,
S/o Sh. Chhote Lal,
R/o M 136, Shastri Nagar,
Delhi110 052
Also at :
Shop in Property No. B1528,
Shastri Nagar, Delhi. ........ Respondent.
Date of institution of case : 12.02.2013
Date on which order was reserved : 02.04.2016
Date of announcement of order : 02.04.2016
JUDGMENT
1. Petitioner Sh. Virender Singh has filed eviction petition under section 14 (1) (e) read with section 25B of Delhi Rent Control Act, 1958 (hereinafter referred as DRC Act) for seeking eviction of respondent Sh. Rishi Prakash @ Munna Pahlwan from tenanted shop measuring area 8' x 16' forming part of property No. B1528, Shastri Nagar, Delhi more specifically shown in red colour in the site plan.
1.1 Respondent is averred as old tenant occupying the shop which was let out for commercial purpose upon monthly rent of Rs. 300/ excluding electricity, water and house tax. 1.2 Petitioner's case gleaned from para no. 18 (a) of the Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 1 of 10 petition discloses that his grandfather late Sh. Pribhu Singh was owner of property bearing no. B1528, Shastri Nagar, Delhi and was succeeded by petitioner's father late Sh. Nahar Singh and Smt. Vidya Saini who had relinquished her share in ancestral property in favour of her bother late Sh. Nahar Singh vide relinquishment deed dated 08.06.1990.
1.3 Petitioner has asseverated himself as sole and absolute owner of property comprising tenanted shop on the basis of family settlement dated 29.08.2001 between his father Sh. Nahar Singh and other legal heirs / representatives which was duly registered in the office of SubRegistrar, Delhi.
1.4 Respondent occupying tenanted shop measuring 8' x 16' is alleged as habitual defaulter in paying the rent and his eviction on the ground of bonafide requirement is sought by petitioner for himself and his sons dependent upon him for commercial purpose as property no. B1525, Shastri Nagar, Delhi from where he was earlier carrying his business has been converted into residential premises which is exclusively used for residence and petitioner has no other accommodation / commercial property in Delhi for running his business.
2. Notice of eviction petition in prescribed form as per Third Schedule was served upon respondent and application alongwith affidavit of Sh. Rishi Prakash @ Munna Pahlwan was filed for seeking leave to contest his eviction.
3. Petitioner filed his reply for opposing respondent's application who thereafter filed his replication (rejoinder) and after hearing submissions addressed by their counsels, Ld. Predecessor Judge vide order dated 16.08.2013 allowed respondent's application granting him leave to contest his eviction.
Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 2 of 10
4. Respondent Sh. Rishi Prakash thereafter filed his written statement for seeking dismissal of eviction petition with cost inter alia upon following grounds :
4.1 That eviction petition is not maintainable and is liable to be dismissed since respondent has ceased to remain as tenant after execution of ikrarnama / mehnatana dated 17.04.1988 executed by petitioner's father late Sh. Nahar Singh in his favour and has become the owner of disputed shop.
4.2 That respondent is occupying the shop peacefully without any interruption since 17.04.1988 and petitioner has neither asked for rent nor sent any notice regarding nonpayment of rent. 4.3 That property measuring 600 sq. yards adjacent to tenanted shop is under the possession and ownership of petitioner which can be used for his business and eviction petition is therefore liable to be dismissed in the absence of bonafide need of the shop. 4.4 That eviction petition is liable to be dismissed as no legal notice was served upon respondent and provision of section 14 (1)
(e) read with section 25B of DRC Act is not applicable to the facts of the case.
4.5 That eviction petition is liable to be dismissed as petitioner is having his house and shop measuring about 250 sq. yards from where he is running his business.
5. On merits, petitioner's averments were disputed by respondent for denying landlordtenant relationship by claiming that he continued as tenant till 17.04.1988 and thereafter became owner of the shop on the basis of ikrarnama / mehnatana, in the alternative, he has remained in adverse possession of disputed shop since 17.04.1988.
6. Petitioner filed his replication for assailing ikrarnama / Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 3 of 10 mehnatana dated 17.04.1988 as forged and fabricated document besides claiming that the document did not confer any right or title in favour of respondent.
7. During evidence, petitioner Sh. Virender Singh has entered the witness box as PW01 and tendered his affidavit in evidence which is Ex. PW1/A. He has relied upon documents Ex. PW1/1 to Ex. PW1/4 and was crossexamined by Adv. Sh. G.P. Sharma for respondent. No other witness was examined and petitioner's evidence was closed in the affirmative upon his statement recorded on 27.05.2014.
8. Respondent Sh. Rishi Prakash @ Munna Pahlwan on the other hand has examined himself as RW01 and tendered his affidavit in evidence which is Ex. RW1/A. He has relied upon photocopy of ikrarnama / mehnatana (OSR) as Ex. RW1/1 and was subjected to crossexamination by petitioner's counsel. No other witness was examined by respondent and his evidence was closed on 17.12.2015 upon the statement of Adv. Sh. G.P. Sharma.
9. Final arguments have been addressed by Adv. Sh. Diwan Singh Chauhan for petitioner and Adv. Sh. G. P. Sharma for respondent.
10. Having heard their rival submissions and perused their evidence led on record, it is evident from the written statement and deposition of respondent recorded during trial that landlordtenant relationship prior to 17.04.1988 is not disputed. Respondent Sh. Rishi Prakash @ Munna Pahlwan, nonetheless, claims to have ceased as tenant after execution of ikrarnama / mehnatana dated 17.04.1988 and has alluded to photocopy of ikrarnama / mehnatana referred during evidence as Ex. RW1/1 which was purportedly executed by late Sh. Nahar Singh in his favour.
Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 4 of 10
11. Upon being subjected to crossexamination by petitioner's counsel, respondent Sh. Rishi Prakash (RW1) has admitted petitioner Sh. Virender Singh as son of erstwhile owner late Sh. Nahar Singh and has also admitted rent receipt issued by late Sh. Nahar Singh which has been proved by petitioner on record as Ex. PW1/4. Respondent has also denied the suggestion that ikrarnama / mehnatana referred as Ex. RW1/1 was forged and fabricated which did not bear the signature of late Sh. Nahar Singh and deposed to have not filed any suit against late Sh. Nahar Singh for getting the property (shop) registered in his name. He has deposed about oral instructions by late Sh. Nahar Singh to get his property vacated from tenants and also deposed to have not paid any consideration amount to those tenants of late Sh. Nahar Singh.
12. Since ikrarnama / mehnatana dated 17.04.1988 refers to alleged reciprocal promise between late Sh. Nahar Singh and respondent Sh. Rishi Prakash @ Munna Pahlwan with respect to handing over of disputed shop to respondent in lieu of eviction of tenants in plot no. B1528, so, validity of such agreement is to be established by respondent for claiming any right or title on the basis of purported reciprocal promise / agreement entered between them on 15.10.1987.
13. Chapter 2 of the Indian Contract Act, 1872 deals with contracts, voidable contracts and void agreements whereas section 10 lays down what agreements are contract and is reproduced below for reference :
"Section 10. What agreements are contracts. - All agreements are contracts if they are made by the free consent of parties competent to contract, Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 5 of 10 for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void."
14. It would be also apt to refer to section 23 of The Indian Contract Act, 1872 which deals with lawful consideration and object. The relevant section is reproduced in verbatim for reference :
"Section 23. What consideration and objects are lawful, and what not. - The consideration or object of an agreement is lawful, unless It is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void."
15. In the facts of the present case, since impugned ikrarnama / mehnatana dated 17.04.1988 was purportedly executed by late Sh. Nahar Singh in favour of respondent in lieu of eviction of tenants from plot no. B1528, so, such consideration being forbidden by law which would defeat the provisions of Delhi Rent Control Act, 1958 enacted with its object to provide for the control of rents and eviction is unlawful and is also opposed to public policy and therefore ikrarnama / mehnatana Ex. RW1/1 is unlawful and void.
Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 6 of 10
16. Further, it is also pertinent to note that any instrument of gift of immovable property or other nontestamentary instrument which purports or operates to create, declare, assign, limit or extinguish any right, title or interest in immovable property of value of Rs. 100/ and upwards requires compulsory registration. Since impugned ikrarnama / mehnatana dated 17.04.1988 has been referred by respondent for claiming himself as owner of disputed shop, so, the instrument creating right, title or interest in respondent's favour required compulsory registration and cannot be read in evidence as per section 17 read with section 49 of The Registration Act, 1908.
17. Since respondent Sh. Rishi Prakash @ Munna Pahlwan has admitted his tenancy in disputed shop before 17.04.1988 whereas impugned ikrarnama / mehnatana is held to be void creating no title or interest in his favour, so, respondent is also barred from disputing petitioner's title on the basis of principle of estoppel under section 116 of Indian Evidence Act, 1872 which provides that no person is allowed to approbate and reprobate at the same time.
18. Principle of estoppel arising from the contract of tenancy is based upon the healthy and salutary principle of law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord should not be allowed to launch his landlord in some inequitable situation taking undue advantage of the possession that he got on the basis of any probable defect in the title of his landlord.
19. Hon'ble Supreme Court in its judgment titled "Bansraj Lalta Prasad Mishra vs. Stanley Parker Jones" (2006) 3 SCC 91 has held :
"The underlying policy of section 116 is that Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 7 of 10 where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section."
20. With respect to respondent's contention about peaceful occupation of disputed shop since 17.04.1988 without any interference from petitioner who neither asked for rent nor sent any notice regarding nonpayment of rent for claiming his right in the shop through adverse possession, petitioner Sh. Virender Singh during his crossexamination has deposed to have demanded rent from respondent who refused to pay rent on one pretext or the other. Petitioner (PW1) has admitted respondent's possession in disputed shop since 1983 without any interruption besides his admission to have not issued any legal notice to respondent prior to filing of eviction petition. Nonetheless, it is well settled principle of law that permissive possession, however long, cannot by itself be said to have become hostile by a long lapse of time for setting up title on the basis of adverse possession as held by Hon'ble Supreme Court of India in its judgment titled "State of Punjab & Ors Vs. Brigadier Sukhjit Singh 1993 SCC (3) 459.
21. Hon'ble Punjab & Haryana High Court in its judgments titled "Gurcharan Singh & Ors. Vs. Mukhtiar Singh & Ors." 2010 (4) Civil Court Cases 302 (P&H) and "Jeet Singh through LRs Vs. Molu Ram through LRs" 2010 (4) Civil Court Cases 417 (P&H) Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 8 of 10 have held that a tenant cannot set up title by adverse possession by alluding to well settled principle "once a tenant always a tenant" as mere non payment of rent will not mean that relationship of landlord and tenant has ceased to exist and tenant cannot claim his possession over tenanted premises as open and hostile to the owner just because of non payment of rent for seeking declaration of title on the basis of adverse possession. Further, it is significant to allude to crossexamination of respondent (RW1) Sh. Rishi Prakash recorded on 16.01.2015 wherein he has deposed "It is correct that I have never surrendered my tenancy rights in respect of the suit property".
22. Finally, as regards the next plea raised by respondent about property measuring 600 sq. yards lying under possession and ownership of petitioner which could be used for his business, respondent Sh. Rishi Prakash (RW1) during his crossexamination has admitted that land measuring 600 sq. yards had been sold by late Sh. Nahar Singh to Sh. Bhagat Ram and remaining portion of property bearing no. 1528 other than tenanted shop was in possession of Sh. Bhagat Ram. Further, notwithstanding, his plea about petitioner's house and shop measuring around 250 sq. yards, respondent could neither recollect the property number of petitioner's house nor could depose about any other place of business despite his testimony that petitioner was carrying his business of dye and printing of clothes in the name of his soninlaw from his residential premises.
23. Petitioner Sh. Virender Singh on the other hand has deposed about his business being carried from property no. B1525, Shastri Nagar, Delhi which commercial space was converted into residential premises and he is left with no other accommodation for seeking respondent's eviction for running his business from the Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 9 of 10 tenanted shop. During his crossexamination by respondent's counsel, petitioner (PW1) Sh. Virender Singh has deposed about business of pressing of clothes being carried by his son Sh. Anuj Kumar from residential premises bearing no. B1525 and has also deposed about some litigation against one shopkeeper namely Sh. Vinod Kumar who is occupying remaining portion of land measuring around 75 sq. yards for carrying his business of stones whereas another tenant is doing the business of printing in area measuring around 75 sq. yards.
24. Therefore, petitioner Sh. Virender Singh and his son Sh. Anuj Kumar cannot be expected or forced to earn their livelihood for maintaining their family by continuing with their business of pressing, dye and printing of clothes as deposed by petitioner and respondent during their crossexamination. Since bonafide requirement of tenanted shop occupied by respondent Sh. Rishi Prakash @ Munna Pahlwan by petitioner for running his business is held to be bonafide, honest and conceived in good faith, hence, eviction order is passed against respondent Sh. Rishi Prakash @ Munna Pahlwan in respect of tenanted premises i.e. one shop forming part of property no. B 1528, Shastri Nagar, Delhi more specifically shown in red colour in the site plan filed by petitioner. This order shall however not be executed within a period of six months from today as per section 14 (7) of DRC Act.
File be consigned to record room.
Announced in open court (Tarun Yogesh)
Dated 2nd April 2016 SCJCumRC (Central)
Tis Hazari Courts, Delhi.
Sh. Virender Singh Vs Sh. Rishi Prakash @ Munna Pahalwan page no. 10 of 10