Delhi District Court
Parveen Jain vs Mela Ram Malhotra Ors on 22 October, 2024
RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors
IN THE COURT OF ARC-cum-CCJ-ACJ, SOUTH
DISTRICT COURTS COMPLEX, SAKET, NEW DELHI
PRESIDED BY: PARAS DALAL, DJS
RC ARC No. 6012/2016
[U/Ss. 14(1)(a),(b) & (j) DRC Act, 1958]
CNR No. DLST030000902013
Sh. Praveen Jain
S/o Late Sh. Mahavir Prasad Jain
R/o D-29, Vivek Vihar, New Delhi-110095
.........Petitioner
versus
1. Sh. Mela Ram Malhotra
S/o Late Sh. Brij Lal Malhotra
R/o Sector-B, Pkt.-8, Flat No.6107,
Vasant Kunj, New Delhi
2. Sh. Surinder Kumar Malhotra
S/o Late Sh. Brij Lal Malhotra
R/o Sector-B, Pkt.-8, Flat No.6108,
Vasant Kunj, New Delhi
3. Sh. Anil Kumar Jain
S/o Late Sh. Mahavir Prasad Jain
R/o C/9-172, Yamuna Vihar, New Delhi-110053
.............Respondents
Pages 1 of 27
RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors
Date of Institution : 01.07.2013
Date of Arguments : 14.10.2024
Date of Pronouncement : 22.10.2024
JUDGMENT
1 The present petition has been filed by the petitioner seeking eviction of the respondent no.1 on grounds as envisaged under Section 14(1)(a), (d) & (j) of Delhi Rent Control Act, 1958 (hereinafter referred to as 'DRC Act, 1958). The respondent no.3 is proforma respondent being co-landlord and real brother of petitioner. The petitioner has averred in the petition that he is joint owner of undivided half equal share in respect of entire built up premises no.883, Ward no.6, situated at Main Bazar Mehrauli, New Delhi part of Khasra no. 1665(old) and 1151/3 (new) falling in Lal Dora, Abadi of village Mehrauli, New Delhi which included present Kothri 9'x10', one tin shed and one room 12'x9' and appurtenant land (open space) later on three rooms, one kitchen, one bed room, Veranda on ground floor and appurtenant land (without roof rights) part of property no.883, Ward no.6, situated at Main Bazar Mehrauli, New Delhi part of Khasra no. 1665(old) and 1151/3 (new) falling in Lal Dora, Abadi of village Mehrauli, New Delhi. Now urbanised Village New Delhi vide notification no. RNZ/ 526 dated 13.06.1963 (hereinafter referred to as the 'demised premises') 2 The petitioners alleged that the property belonged to and was constructed by the ancestors of petitioner. A number of tenants, including Late Sh. Brij Lal, father of respondent no.1 and 2 were inducted as tenant by grandmother of petitioner and father of petitioner somewhere in year 1950-60. The petitioner further alleged that after the death of Sh. Paras Dass Jain, grandfather of the petitioner, his grandmother Smt. Gunwanti Devi became the owner of the property and was recorded owner in the MCD records since his father Sh. Mahavir Prasad Jain was minor at that time. The petitioner alleged that on Pages 2 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors coming of age, his father Sh. Mahavir Prasad Jain became owner of the tenanted premises until he died on 28.06.1990. Sh. Mahavir Prasad Jain was stated to have died intestate and hence his four legal heirs namely, Smt. Rupan Jain, Sh. Anil Kumar Jain (respondent no.3), Smt. Renu Jain; and Sh. Praveen Jain (petitioner) became the owners. Smt. Rupan Jain relinquished her share vide deed dated 29.10.1981 in favour of above three legal heirs. In a subsequent partition suit before the Hon'ble High Court of Delhi, the remaining three legal heirs of Sh. Mahavir Prasad Jain entered compromise and partition decree was accordingly passed wherein the tenanted premises came in joint equal half ownership of petitioner and respondent no.3 (both brothers S/o Mahavir Prasad Jain).
3 The petitioner further alleged that after the death of Sh. Mahavir Prasad Jain in 1980, both brothers had equal legal right to receive the rent from all tenants of their ancestral properties including the Late Sh. Brij Lal, predecessor father of respondent no.1 and 2 who was tenant in the demised premises. The petitioner also alleged to have been pursuing his M.B.B.S. at Govt. Medical College when his father died on 28.06.1980 and hence he executed attorney vide document dated 17.07.1980 in favour of his brother/ respondent no.3 to manage and look after the inherited properties including the demised premises.
4 The petitioner specific to the present case alleged that Sh. Brij Lal, father of respondent no.1 and 2 was inducted as a tenant by his grandmother Smt. Gunwanti Devi and his father Sh. Mahavir Prasad Jain in demised premises ad- measuring 82 sq. Yds. for monthly rent of Rs.7.50/- without roof rights excluding electricity, water, house tax or any civil tax charges which is to be paid by respondent no.1 as per demand raised by the authorities concerned. The petitioner stated that Sh. Brij Lal had being residing, however after his demise Pages 3 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors respondent no.1 and 2 inherited the tenancy and demised premises is under their lock and key, although not occupied for many years now. The petitioner alleged that the respondent no.3 was receiving above rent on his behalf as well as on behalf of petitioner and the said fact was very well in knowledge of Sh. Brij Lal and respondent no.1 and 2.
5 The petitioner alleged that in the year 2010, when the respondent no.1 and 2 defaulted in payment of rent, he enquired from the respondent no.1 and 2 who did not disclose anything and refused to pay the rent. The petitioner alleged to have visited the tenanted shop, however found that the said shop was closed and he came to know about forgery on 19.10.2012 qua some property documents of the demised premises.
6 The Petitioner further alleged to came to know of GPA sale documents executed by respondent no.3 in favour of Sh. Brij Lal qua the demised premises on 04.07.1992 and subsequently Sh. Brij Lal filed application for mutation on 23.09.1994 which was allowed by MCD. Petitioner averred that Sh. Brij Lal expired on 23.12.1996 and upon his demise his sons respondent no.1 and 2 applied for mutation on 16.03.1998 which was issued on 16.04.1998. In said mutation proceedings, the NOC/ Affidavit dated 26.04.1994 was filed by Mrs. Kamla Rani @ Urmila, Mrs. Shakuntla Kumari, Smt. Nirmal Kumari, Smt. Saroj Bala Sammi, all daughters of Sh. Brij Lal. An affidavit of Smt. Motia W/o Sh. Brij Lal was also filed 02.02.1999. The Assistant Assessor and Collector issued letter dated 22.01.2009 seeking NOC/ Affidavit of daughters and widow of Sh. Brij Lal, which was filed and mutation in name of respondent no.1 and 2 was issued on 18.03.1999 was issued. The petitioner alleged that the mutation proceedings were all illegal as same was issued without any notice to the recorded legal heirs of Sh. Paras Dass.
Pages 4 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors 7 Petitioner alleged to have visited the property as far as accessible to him on 12.12.2012 and same was found to be locked and no body was living there since the respondent no.1 and 2 had shifted to residential address in Vasant Kunj, New Delhi. Petitioner served notice dated 10.02.2013 terminating the tenancy w.e.f. 01.03.2013 and also sought payment of legally recoverable rent @Rs.30/- per month of three years prior to the date of receipt of legal notice. The petitioner has thus preferred the present petition for non-payment of rent as well as non-occupation for more than six months prior to filing of the petition. The petitioner has also annexed site plan and photographs of the property to plead that the demised premises has been abandoned causing substantial damage. Hence the prayer is to allow the present petition on all three grounds of non- payment of rent, for non-occupation as well as causing substantial damage.
8 The respondents were issued notice of the petition and respondent no.3 was proceeded ex-parte on 21.03.2015. Respondent no.1 and 2 upon entering into appearance, filed written statement. The respondent no.1 and 2 denied landlord-tenant relationship between him and petitioner. The respondent no.1 and 2 took support of petition that petitioner never received any rent for himself and stated that even the petitioner was not aware as the premises qua which eviction is sought. The respondent no.1 and 2 stated that petitioner never received any rent. The respondent no.1 and 2 sets up his own title claim over the tenanted premises and stated that respondent no.3 sold the tenanted premises to Sh. Brij Lal father of the respondent no.1 and 2 in the year 1992 through GPA sale and subsequently, the same was mutated in his name and on his demise on the respondent no.1 and 2 since widow and daughters of Sh. Brij Lal gave NOC/ Affidavit in mutation proceedings. The respondent no.1 and 2 claimed exclusively title to the tenanted premises since 1992 and their own since 1996.
Pages 5 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors The respondent no.1 and 2 thus claimed to be exclusive owner of the tenanted premises through respondent no.3 and hence claimed that the petitioner not being owner, is not entitled to seek eviction under the provisions of Delhi Rent Control Act.
9 As regards the averments in the petition, the respondent no.1 and 2 replied confirming his preliminary submission, vehemently contesting the ownership claim of the petitioner. The respondent no.1 and 2 stated to be exclusive owner in possession of the tenanted premises since the year 1992. The respondent however, has not contested the claim of being tenant before the year 1992 and has also not stated about the last paid rent and lawful rent payable, if any before the year 1992. The respondent no.1 denied all the averments of the petitioner qua the previous ownership of Sh. Paras Dass Jain or Sh. Mahavir Prasad Jain as well as subsequent joint ownership of petitioner and respondent no.3. The respondent no.1 in his pleadings thus has not stated specifically about earlier tenancy prior to year 1992, lawful rent as well as last paid rent.
10 The petitioner filed rejoinder taking the very same stand that respondent no.1 has been unambiguous, made positive admission and also gave evasive denial. The petitioner also filed previous ownership records dating back to year 1987. The petitioner stated that the respondent no.1 and 2 are also defendants in CS 88/2013 wherein the alleged sale and mutation has been challenged by the petitioner. The petitioner further stated that the respondent no.1 has not setup any independent title. The GPA sale of year 1992 is nothing in the eyes of law and infact the respondent no.1 and 2 have not proved any previous title of respondent no.3 to sell the tenanted premises.
Petitioner's evidence Pages 6 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors 11 Petitioner examined himself as PW1 however, before that he called formal witnesses to prove documents.PW2 Sh. M.K. Verma, Zonal Inspector, Property Tax Department, SDMC, South Zone who brought the file of assessment of property tax no.883/06, Ward no.6, Mehrauli, New Delhi-30 and he could only show copy of survey record which is now Ex.PW2/1. Sh. Dinesh Kumar was called as PW3 and he came from DC Office, Gurgaon, Haryana to exhibit Ex.PW1/2 (Colly) which is sale deed Vasica no.53 dated 01.04.1897, Jilad no.39, page no. 296 to 301 Bainama for Rs.1,000/-. PW4 Sh. Aziz-ur- Rehman was called to prove the translation of Urdu to English of Ex.PW2/1 who exhibited the English translation as Ex.PW4/1. PW5 Sh. Sushil Kumar Kala, Judicial Assistant from RKD (Original) Branch, Hon'ble High Court of Delhi exhibited record of suit no.236/85 titled Smt. Rupan v. Anil Kumar Jain which is Ex.PW1/4. PW6 is Sh. Shivaji, record attendant, Government of NCT of Delhi Department of Delhi Archives to prove General Power of Attorney bearing registration no.5720 in additional book no.4, volume no.766, on pages 27 to 29 dated 23.07.1980 which is Ex.PW1/5(OSR). PW7 Ramasray Singh Yadav was also examined to prove the site plan Ex.PW1/6.
12 Petitioner then examined himself as PW1 and filed affidavit Ex.PW1/1 in his examination in-chief wherein he has reiterated and reaffirmed the contents of petition on oath. He has relied upon the following documents:- Ex.PW1/2 to Ex.PW1/7. The Ld. Counsel for the respondent objected to the exhibition of said documents as to mode of proof, however it was recorded that Ex.PW1/4 and Ex.PW1/5 were certified copies and was also proved by PW6 and Ex.PW1/2 was proved by PW3, Ex.PW1/6 was proved by PW6 and PW7, respectively. Ex.PW1/3 was proved in original record by PW2 vide Ex.PW2/1 and Ex.PW1/7 is the legal notice. PW1 was cross examined wherein he answered that address of the suit property is 883, Ward No.6, Main Bazaar, Village Abadi, part of Pages 7 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors Khasra No.1665 (Old) and 1151/3 (New) Mehrauli, New Delhi and voluntarily added that the tenanted premises was part of the above said property. PW1 further stated that property from Sh. Paras Dass Jain devolved upon his grandmother Smt. Gunwanti Devi as was recorded in MCD Inspection Report Ex.PW2/1 and admitted that there was no document to show ownership of Mahavir Prasad Jain qua the tenanted premises. PW1 further answered that tenanted premises was part of partition decree Ex.PW1/4 and he referred to serial no. xii of the partition decree. PW1 stated that the address of suit property is a portion of property no.883, having address at Ward No.6, Main Bazar, Mehrauli, New Delhi. PW1 then was specifically question as to the Ward number of the property mentioned in Ex.PW1/4 and he stated that in the partition decree the Ward number has been mentioned as 4 instead of 6. PW1 stated the above to be a typographical mistake however stated that no application has been made seeking correction of the said typographical mistake. PW1 stated that he received no rent from respondent no.1 and 2, however voluntarily added that he had appointed his brother respondent no.3 as his attorney without power of sale, to receive the rent on his behalf from respondent no.1 and 2 and issue the rent receipts to respondent no.1 and 2 since the death of their father. The respondent no.1 and 2 also relied on photocopy of rent receipts. PW1 stated that he had executed General Power of Attorney and there was no specific attorney qua the tenanted premises. PW1 was specifically asked that respondent no.3 was exclusive owner of the tenanted premises, however PW1 denied and stated that respondent no.3 was never an exclusive owner of the tenanted premises and documents executed by respondent no.3 was not valid. PW1 reiterated that he and his brother/ respondent no.3 are the owner of the suit property however he did not have any document to show the same. PW1 further stated that one Civil Suit was also pending qua the tenanted premises and upon being shown a document, admitted the certified copy of plaint as Ex.PW1/R1.
Pages 8 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors Respondent's evidence 13 Respondent no.1 examined himself as RW1 and exhibited his evidence by way of affidavit as Ex.RW1/A and relied on Ex.RW1/1 (OSR) copy of registered general power of attorney executed by Anil Kumar Jain/ respondent no.3; Ex.RW1/2 (OSR) copy of agreement to sell executed by respondent no.3 in favour of respondent no.1 and 2; copy of Will executed by respondent no.3 in favour of father of respondent no.1 and 2 registered on 06.07.1992; copy of receipt Ex.RW1/4 (OSR); copy of pay order of Rs.30,000/- Mark A; and copy of affidavit executed by respondent no.3 attested on 04.07.1992 Ex.RW1/5. RW1 in his cross examination answered that his father was Sh. Brij Lal Malhotra and he had two sons and four daughters, who was a businessman working as gold smith in Mehrauli Bazar bearing shop no4/359, Imam Bara, Mehrauli, New Delhi. RW1 stated that until before his death his father was residing in the demised premises, which he had taken on rent from respondent no.3 and was residing in demised premises since 1948 ever since he came from Pakistan. RW1 stated that may be his father had taken the demised property on rent from respondent no.3's father but subsequently Sh. Anil Kumar Jain used to collect rent. RW1 could not comment if the father of respondent no.3 was the landlord as well as owner of the aforesaid accommodation and he stated to have been born in the year 1949. RW1 stated that his father never told him how many children did Mahavir Prasad Jain (father of respondent no.3) had. RW1 further stated that sometime they used to pay rent to respondent no.3 and sometimes their munshi used to come to collect the rent. RW1 further stated that he had rent receipts at his home. RW1 further deposed that at the time of death his father was residing in demised premises, however again said that he was residing with him at his Vasant Kunj address. RW1 stated that rent was paid till the year 1992. RW1 then stated that respondent no.3 is alive and he met him even after filing of the Pages 9 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors present petition. RW1 denied that the demised premises is vacant since 1996 and voluntarily stated that goods are lying therein and they have been visiting it. RW1 further stated that sometimes he and sometimes his father visit the property and even their sister visit the property. RW1 however stated that he is residing in address mentioned in affidavit and his brother is also residing in address Sector B, Pocket 8, flat no.6108, Vasant Kunj, New Delhi. RW1 then stated that he had old electricity bills and produced Ex.RW1/P1 (Colly) i.e. 12 bills of various months of year 2015, 2017 and 2018. RW1 deposed about electronic items in the demised premises and stated stated that the electricity is still in name of his father whereas two water connections are in name of his father and RW1. RW1 also stated that no connection is in name of his brother/ R2. RW1 stated that Respondent no. 3 is younger to him in age. RW1 also deposed that respondent no.3 has gas agency in INA and he met him after the present petition was filed who assured of coming to Court to depose if need be. RW1 when asked about title documents of respondent no.3 stated that he could not say what title documents respondent no.3 were seen before the purchase of demised premises and voluntarily stated that his father must have seen the same. RW1 stated that he did not demand any title document of respondent no.3. RW1 when directed by the Court produced four rent receipts Mark D1 and when confronted with other receipts and counter foils, RW1 stated that same were in possession of his father, however he has now passed away. RW1 was then confronted with Mark P1 (OSR) i.e. original receipt dated 05.11.1975 bearing no. 141 and he stated that he had no knowledge of the said receipt. RW1 however admitted that the signatures seemed to be that of his father. RW1 further could not tell who was the owner of the demised premises when his father came in possession of the demised premises and RW1 could also not tell if his father used to pay rent to the grandmother of the petitioner Smt. Gunwanti Devi and thereafter to his father Mahavir Prasad Jain. RW1 further stated that there has been some Pages 10 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors changes in the structure of the suit property since he have been seeing it since his childhood till today and could not tell about the changes in the structure. RW1 further stated that his father had made the changes and he did not carry out any changes. RW1 could not say if his brother had carried out any changes and admitted that no changes were carried out by Sh. Anil Kumar Jain. RW1 denied receiving any notice and he stated that no rent was tendered since it was purchased by his father. RW1 further deposed if petitioner and Anil Kumar Jain was still owner of the demised premises, however he again said that they are not owners since their father was the owner of the demised premises.
14 The respondent no.2 next stepped in witness box as RW2 and deposed on affidavit Ex.RW2/A relying on the same documents as RW1. RW2 in his cross examination answered that admitted that his father had taken the demised premises on rent from Sh. Mahavir Prasad Jain and said property was located in Ward No.VI who used to collect rent. RW2 further stated that demised premises had two rooms, one verandha (covered with tin shed) measuring approximately 85-90 sq. Yds. And last paid rent was Rs.50/- which was increased gradually over the years from Rs.10/-. RW2 stated that rent was collected by Munshi of Sh. Anil Jain and receipt carried the name of Sh. Anil Jain. RW2 was then confronted with receipt no. 141 dated 05.11.1975 and no. 382 exhibited as Ex.RW2/P1 (OSR) and Ex.RW2/P2 (OSR) and he admitted the signatures on the said receipt being that of his father Sh. Brij Lal Malhotra. RW2 was then cross examined as to title documents of respondent no.3 to which RW2 answered that no suit has been filed against respondent no.3 qua the documents i.e. GPA sale documents executed by him and could not tell if Sh. Anil Kumar Jain was having any title document in his favour. RW2 further could not tell if Praveen Jain (petitioner) was brother of Anil Kumar Jain (respondent no.3). RW2 admitted of having carried out structural construction/ alteration to the premises, Pages 11 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors however he voluntarily stated that same was carried out after purchase of the demised premises. RW2 stated to not have paid any rent to petitioner or respondent no.3 after receipt of demand notice or after filing of the present petition.
15 Respondents as RW3 examined Mr. Rajinder Singh, Record Attendant Department of Delhi Archies and she produced registered Will executed by Sh. Anil Kumar Jain vide document no.3862 volume no.677 page no.9 dated 06.07.1992 SRIII book III, copy of which was exhibited as Ex.RW3/1 (OSR).
16 Arguments advanced by learned counsel for both the petitioner considered and records have been perused.
Appraisal of Evidence 17 Before appreciating evidence, the provisions under which the present petition has been filed needs to be highlighted. The petition has been filed for eviction of the respondent no.1 on the ground of 'non-payment of legally recoverable rent' [Section 14(1)(a)], 'non-occupation of premises for a period of six months immediately before the date of filing of the suit' [Section 14(1)(d)] and 'tenant having caused or permitted to be caused substantial damage to the premises' [Section 14(1)(j)]. Each of the ground stated requires individual appreciation of evidence in the present case.
Identification of the tenanted premises and landlord-tenant relationship 18 A primary issue in the present petition is identification of tenanted premises. The determination of this issue is pivotal before discussing the prayer as to each ground of eviction. The issue arose for identification of demised premises, since the respondent no.1 and 2 claimed to be owner of the property Pages 12 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors since 1996 through their father Sh. Brij Lal Malhotra having purchased the property from respondent no.3 in the year 1992 through GPA sale. Although the petitioner placed certain documents to support his claim of joint title, the respondent no.1 and 2 challenged the physical existence of tenanted premises in Ward number as stated by the petitioner. Thus the fact needs to be established if the petitioner has been able to prove the site as well as tenanted premises.
19 The petitioner relied on one registered sale deed of the year 1897 and certified copy of the same was proved by PW3 i.e. Ex.PW1/2 (Colly). The said registered sale deed is in Urdu language and hence Petitioner sought to translate the same into English language. The translation was carried out by PW4 and his true copy of translation is Ex.PW4/1. The respondent side sought to question the translation and put a suggestion that he had not translated the copy correctly, however mere suggestion cannot disprove the translation. The respondent could have proved on record a correct translation. From the record PW4 produced his certificate of empanelment Ex.PW1/2 (Colly) and PW4 being an independent witness, this Court finds no impediment in reading the translation Ex.PW4/1 of Ex.PW1/2 (Colly) as correct. Had there been discrepancies and wrong translation, the same ought to have been confronted by the respondent side or atleast a different and correct translation been proved. Mere general questioning and suggestion that translation being not correct, would not prove the challenge of the respondent side. This Court states that petitioner is entitled to benefit of Section 90 Evidence Act, wherein the certified record of year 1897 carries presumption of being duly executed and attested. The entire sale deed is silent as to any specific number of the property qua which the document has been executed. Quite understandably, the executed document is of 1897 and property is of Mehrauli wherein the property has been described in great details alongwith all physical attributes. The respondent side sought to question PW6 Pages 13 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors about translation and there being no signatures of parties present then. Firstly, there is presumption which exists of Section 90 Evidence Act and it has to be seen that registration is of year 1897 when Registration Act 1908 was not in effect. The petitioner side during arguments quoted the provisions of Registration Act, 1877 and also drew the attention of the Court to the circumstances of year 1897 wherein the photocopy machine was not available. The document executed between the parties would have been taken to the Registrar/ Sub-Registrar, who would record the contents of the document in the given Register and in the year 1897 there would be no copy of the original to be taken on record. The said procedure is the reason for the questioning of the translator/ PW4 about signatures of the parties in the certified copy. Necessarily the deeds would have been executed by the parties and when the same would have been produced before the Sub-Registrar/ Revenue Authority, they would write the contents and not take signatures of parties in original on the register. Although the translation shows the exact terms of deeds including having been signed by the parties and even the Registrar has noted that there were signatures on the deed which was produced for registration. This Court finds that the respondent no.1 has failed to rebut the presumption of genuineness of the certified copy Ex.PW1/2 and translation of Ex.PW4/1 being correct and genuine. The petitioner however cannot exactly establish the identity of the tenanted premises from the said sale deed of the year 1897 since the physical attributed and demarcation of the property has been since changed in more than a century.
20 The petitioner has since beginning stated that the tenanted premises is part of ancestral property which has come to share of himself and respondent no.3 (his brother) share Sh. Paras Dass Jain, through his wife Smt. Gunwanti Devi and their father Sh. Mahavir Prasad Jain. The petitioner claimed that Sh.
Pages 14 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors Mahavir Prasad Jain had four children, of which petitioner and respondent no.3 are brothers and they had two sisters Smt. Rupan and Smt. Renu. Smt. Rupan relinquished her share in favour of her three siblings and there was family partition before the Hon'ble High Court of Delhi. The family compromise partition deed is Ex.PW1/4 wherein the petitioner claimed that the tenanted premises is part of property mentioned at serial no. xii as two storey built up building Municipal no.883, Ward IV, Mehrauli, New Delhi. The respondent no.1 challenged the description of this property that the compromise decree was in respect of property in Ward IV, whereas tenanted premises is part of property in Ward VI. The respondent no.1 further stated that petitioner during cross examination only referred to this serial no.xii in the compromise decree to refer to the whole property of which tenanted premises is a part, however he never applied for any correction of Ward number of the Hon'ble High Court of Delhi. The petitioner has stated that it was a typographical error and self understood, therefore never sought to be corrected, however petitioner side claims that at no point in time this defence was taken in the pleadings by the respondent no.1 and any typographical error cannot vitiate the entire trial as well as other documents presented. This Court sees substance in the arguments of the petitioner side. The ward number is written in roman numericals and there can very well be a case of typographical error in mentioning VI as IV. Besides, the petitioner has never claimed that there is another property with same number 883 in Ward no.IV belonging to him or his brother. The respondent no.1 has also not made effort to show that there are two different properties in Ward IV and Ward VI having same number as 883. It very well appears to be genuine error in mentioning the ward no. in the compromise decree and the compromise decree seems to be qua property no.883, Ward VI, Mehrauli of which the tenanted premises is a part. There is also admission on part of RW2 in his cross examination wherein Ex.RW2/P1 (OSR) and Ex.RW2/P2 (OSR) i.e. old rent receipts were admitted to Pages 15 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors bear signature of father of respondent no.1 and 2 i.e. Sh. Brij Lal Malhotra and they were also admitted to be of demised premises which mentioned Ward No. VI.
21 Be that as it may, there is also sufficient reasons given to this Court by the respondent no.1 and 2 to believe the case of petitioner qua identification of case property. There has been no specific denial of existence of property as averred by the petitioner and in the entire cross examination of RW1 and RW2, all the reference are made to the same property which the petitioner alleges to have been leased to their father Sh. Brij Lal Malhotra. Although RW1 deposed that property was leased to his father by respondent no.1 in the year 1948, however RW1 was born in 1949 itself and he stated respondent no.3 to be younger to him which negates the deposition of RW1 that respondent no.3 leased the property to his father in the year 1948. Further, the RW1 was not specific to deny that petitioner and respondent no.3's father inducted Sh. Brij Lal Malhotra as their tenant. RW2 has even admitted that Sh. Brij Lal Malhotra was tenant of petitioner and respondent no.3's father. RW2 and RW3 in their cross examination have negated their defence. The pleadings drafted through their counsel would show that petitioner's case has been denied by the respondent no.1 and 2, however in cross examination RW1 and RW2, they both have been evasive and there was no clear and unambiguous denial. RW1 and RW2 rather admitted the case of petitioner. There are admission of rent being last paid @Rs.50/- per month, tenancy of Sh Brij Lal Malhotra under landlordship of Mahavir Prasad Jain, rent receipt issued qua demised premises bearing signatures of Sh. Brij Lal Malhotra, alteration and structural changes done by the respondent no.2 without any approval or consent of the petitioner or respondent no.3. RW1 and RW2 have admitted many of the averments and allegations of the petitioner and their sole defence is transfer of title qua demised premises Pages 16 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors from respondent no.3 in favour of their father through GPA sale in the year 1992. The respondents very well knowing that GPA sale transfer no good title, at present through RW3 they sought to prove Will of respondent no.3 in favour of their father Sh. Brij Lal Malhotra. However, Sh. Brij Lal Malhotra had expired in the year 1996 and as per admissions of both RW1 and RW2, respondent no.3 is still alive and living in Trans-Yamuna area in Delhi and as Gas-agency in INA, New Delhi wherein both respondent no.1 and 2 had met him after the present petition was filed. The respondent no.1 and 2 thus have admitted that tenanted premises was let out to their father by Sh. Mahavir Prasad Jain and predecessor in-interest of petitioner. At this juncture, the belief of this Court is fructified that petitioner has by balance of probability proved that the tenanted premises is part of property no.883, Ward No.VI, Mehrauli, New Delhi. The tenanted premises was let out to predecessor in interest of respondent no.1 and 2 by predecessor of petitioner and respondent no.3. The respondent no.1 and 2 thus cannot take an advantage of practices of 1897 while registration or of typographical error of compromise decree to dispute the identity of the tenanted premises. Had the respondent no.1 and 2 really presented separate documents of previous owners and previous chain independent of petitioner's claim, it could have been shown that tenanted premises never belonged to petitioner. The respondent no.1 and 2 have thus really taken a false stand that petitioner has nothing to do with tenanted premises.
22 For a moment it may be presumed that since petitioner was not residing in the locality, he was not personally known to respondent no.1 and 2. However, respondent no.1 and 2 being resident of the Mehrauli, it is improbable to presume that his father never told them that the tenanted premises was lent out to him by predecessor in interest of petitioner and respondent no.1 and 2. The respondent no.1 and 2 have thus by means of clever drafting and taking Pages 17 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors advantage of oral agreement of tenancy, tried to challenge the landlord-tenant relationship. This Court is thus of firm opinion that respondent no.1 and 2 knew all along that tenanted premises was lent out to their father by predecessor in- interest of petitioner and respondent no.3 and taking advantage that petitioner was not regularly visiting the tenanted premises, he tried to get the property transferred from respondent no.3 without checking any previous chain or title of respondent no.3. Respondent no.1 and 2 in their cross examination admitted that they did not check any previous chain or title of respondent no.3.
23 Since the identity of the property is established and there is neither any dispute qua family pedigree of petitioner and respondent no.3 upto Sh. Paras Dass Jain through Smt. Gunwanti and Sh. Mahavir Prasad Jain nor there is dispute of family pedigree of respondent no.1 and 2 through upto his father Sh. Brij Lal Malhotra. Smt. Gunwanti Devi (grandmother of petitioner) and Sh. Mahavir Prasad Jain (father of petitioner) had inducted Sh. Brij Lal Malhotra as tenant and as tenancy devolved upon respondent no.1 and 2 through succession, the property also devolved upon petitioner and respondent no.3. Thus, respondent no.1 and 2 continues to hold the position of tenant against petitioner and respondent no.3, it is now to be seen, what is the stand of respondent no.1 and 2. The respondent no.1 and 2 stated that their father Sh. Brij Lal Malhotra purchased the property from respondent no.3 in the year 1992 vide registered Will and then said demised premises devolved upon the respondent no.1 and 2 through succession upon death of their father in the year 1996. The respondent no.1 in his cross examination also stated that he is living in Vasant Kunj and his brother is also living in Vasant Kunj and even their father expired in the year 1996 when he was staying with respondent no.1 in Vasant Kunj. RW1 also admitted that his four sisters are married and living in their homes which is not the demised premises. RW1 also admitted that the demised premises is locked Pages 18 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors and at times respondent no.1 and 2 and even their sisters come to visit the same. Some old bills were also produced and exhibited.
24 It is to be borne in mind that Section 116 Evidence Act denies the opportunity to tenant to question the title of landlord as long as the tenancy exists. The Rent Controller is thus not to delve into the claim of title of tenant if acquired subsequently. It is also a settled law that until all landlord transfers their share in the tenanted premises to the tenant, he continues to be a tenant. This law is settled by the judgment of the Hon'ble Supreme Court of India in Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors. AIR 2005 SC 2857. Even if all landlord but one has not transferred title to the tenanted premises, the tenant shall remain in that position. In the present case, even if respondent no.3 has validly transferred his share in the tenanted premises, the respondent no.1 and 2 continues to be a tenant. In this case, we have seen that petitioner and respondent no.3 have joint ownership of undivided equal share in the tenanted premises and petitioner had only executed General Power of Attorney without sale in the year 1980 in favour of respondent no.3. The registered document Ex.PW1/5 is general in nature for management of affairs of and related to the properties, however it is specific that no right to sell has been attorned on respondent no.2. Ex.PW1/5 explicitly as well as by written terms provide for the same. The respondent no.1 and 2 still claims that the respondent no.3 vide GPA Sale Ex.RW1/1 (OSR) to Ex.RW1/5 (OSR) sold the tenanted premises to their father Sh. Brij Lal Malhotra. It is settled law that GPA sale is not valid form of transfer of property and celebrated judgment of Suraj Lamp case; AIR 2012 SC 206 can be quoted here. Although the GPA in the present case is of year 1992, however the respondent no.1 and 2 cannot be said to be illiterate or in ignorance of law. There is genuine doubt as to valid execution of GPA Sale Ex.RW1/1 to Ex.RW1/5 and how Sh. Brij Lal Malhotra acted as attorney of respondent no.3.
Pages 19 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors This Court would further refrain from commenting on the execution of these GPA sale, since the said issue is under consideration before the Competent Court of Civil Jurisdiction. The issue was merely touched upon by this Court for the defence of the respondent no.1 and 2 that they had independent title over the tenanted premises as against the petitioner.
25 To sum up the discussion above, this Court by preponderance of probability is of the opinion that tenanted premises was owned by predecessor in interest of petitioners and same devolved by succession as well as compromise decree upon joint equal but undivided shares of petitioner and respondent no.3. Respondent no.3 was to collect and manage rent on behalf of both vide GPA of year 1980 and respondent no.3 had not right to execute GPA in favour of respondent no.1 and 2's father or anyone else to sell the property. Even if it is presumed that respondent no.3 could have sold his undivided share of the tenanted premises, the respondent no.1 and 2 for the purposes of this petition, would continue to be tenants and it is their responsibility to seek partition of share of respondent no.3. The Civil Court of Competent Jurisdiction is already considering the said aspect of GPA of respondent no.3, however the same is no impediment before this Court to hold that respondent no.1 and 2 are still tenants of petitioner and respondent no.3. This Court has no dearth in saying that respondent no.1 and 2 failed to adhere to the law and employe due caution in ascertaining/ seeking the previous title of the respondent no.3.
26 An attempt has been made by respondent no.1 and 2 to challenge the very maintainability of the present case wherein reliance has been placed on four judgments i.e. S. Makhan Singh v. Amarjeet Bali, 2008 (106) DRJ 705 dated 03.11.2008; Naeem Ahmed v. Yashpal Malhotra dated 27.02.2012; Swan Lata Aggarwal & Anr. v. M/s. Narang Medicine Co., dated 24.11.2015 and MCD v.
Pages 20 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors Harish Chand & Ors, 115 (2004) DLT 481, all passed by the Hon'ble High Court of Delhi. All the four judgment relied by the respondent no.1 and 2 lays down that where tenancy has been denied by the respondent, the benefits of DRC Act would not be available for such tenant/ respondent. This Court has gone through these judgments and none of the four applies to the facts and context of the present case. The first three judgments are not even pertaining to proceedings before Rent Controller and are challenge to pendency of civil suit by party and the challenge being denied in view of the denial of landlord-tenant relationship. The Hon'ble High Court of Delhi underlined that where the tenant denies landlord-tenant relationship he loses any benefit of DRC Act and landlord in such a scenario can file civil suit seeking recovery of possession. In the fourth matter, there was dispute as to title over the premises wherein both parties were claiming their own title based on Will and Gift, respectively. In the present case, the respondent no.1 admitted his father was tenant in the premises of petitioner's father and petitioner contests that he never transferred his share of property to respondent no.1 and 2 and he has not become owner. Even the respondent no.1 states that respondent no.3 sold property to him and from the discussion above, it can be seen that his claim of title is pending. Although rent controller cannot return any finding as to title to any property, however Rent Controller can decide the landlord tenant relationship and as such eviction petition under DRC Act is maintainable. It is still open to the landlord to file civil suit straight away where none of the benefit of DRC Act would be available to tenant, however same does not preclude the landlord to still file suit for eviction on the grounds mentioned in the DRC Act. To counter these arguments of respondent no.1, the judgement of the Hon'ble Supreme Court of India, in Pramod Kumar Jaiswal (Supra).
Section 14(1)(a) - non-payment of rent Pages 21 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors 27 Section 14(1)(a) provides that if a tenant defaults in payment of rent within two months of receipt of notice of demand under Section 106 Transfer of Property Act. In the present case, the respondent no.2 as RW2 admitted not paying rent since the year 1992. Respondent no. 2 admitted being in receipt of notice dated 10.02.2013 and admitted that he has not replied or paid any rent qua the tenanted premises. The petitioner vide notice Ex.PW1/7 sought to recover rent of three year immediately prior to date of notice i.e. 10.02.2013 @Rs.30/- per month for a total of Rs.1,080/- within two months. The respondent no.2 admitted receipt of notice and non-payment of rent. The only defence of the respondent no.1 and 2 is that the their father acquired title from respondent no.3 and thus has liability to pay rent. The issue of alleged acquisition of title by respondent no.1 and 2 has been discussed at length hereinbefore and thus is not reiterated again.
28 The said issue in view of the discussion above stands proved ipso-facto. The respondent no.1 being in arrears of rent immediately prior to service of notice Ex.PW1/7 and till today is liable to be evicted on the ground under Section 14(1)(a) DRC Act.
Section 14(1)(d) - non-occupation of demised premises for six months immediately prior to filing of the eviction petition 29 The requirement of Section 14(1)(d) DRC Act is that there has to be non- occupation of tenanted premises for continuous six months immediately prior to the filing of the petition. The petitioner in his petition averred that the respondent no.1 and 2 are residing in their respective Vasant Kunj flats and other four daughters of Sh. Brij Lal Malhotra are married and not living in the demised premises. The petitioner also took support of the NOC/ Affidavit of four daughters in the mutation proceedings to show that the four daughters of Pages 22 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors Sh. Brij Lal Malhotra had long back surrendered their interest in the demised premises. The respondent denied in his pleadings these averments, however in cross examination both RW1 and RW2 admitted that they were living in Vasant Kunj address and had infact come to Court from the said address. Both respondent no.1 and 2 even deposed that demised premises is locked currently, household articles are lying there and they do go to the property to visit. The respondent no.1 as RW1 even deposed that at the time of his death in 1996 his father Sh. Brij Lal Malhotra was residing with him in his Vasant Kunj address.
30 The respondent brought 12 electricity bills to show possession and continuous usage of the demised premises by respondents, which pertained to year 2015, 2017 and 2018. Although RW1 deposing in Court in the year December 2018 and the petition was filed in the year 2013. The relevant period for non-occupation would be six months prior to filing of the present petition i.e. January 2013 to June 2013, since the petition was filed in July 2013. RW1 however has filed electricity bills of year 2015, 2017 and 2018 which are subsequent.
31 The above facts are relevant to show the intention of the respondent no.1 and 2 in possession of the demised premises. At this juncture, the object and purpose of Delhi Rent Control Act requires to be reiterated. The Act was enacted with many objectives, however the two predominant reasons were - firstly, to control the rent and grounds for eviction available to the landlord; and secondly to maintain steady balance between the demand and supply of accommodation in the Capital Territory. The rent legislations thus is meant to protect the rights and interests of genuine tenants who require premises for their residence. In the present case, the demised premises was let to Sh. Brij Lal Malhotra who has since deceased in the year 1996. After his demised his widow and four daughters Pages 23 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors have already expressed their no interest in the demised premises and respondent no.1 and 2 are residing in their respective addresses other than the demised premises. The petitioner side has rightly relied upon the judgment of R.K. Bhatnagar v. Sushila Bhargava and Ors., AIR 1987 DELHI 36, wherein it was held that 'occupation' means occupation in the sense of actual user. The tenancy thus must not only be on papers, but actual physical possession of the tenant and not visits.
32 RW1 and RW2 both have admitted that they reside in addresses mentioned in their affidavit Ex.RW1/A and Ex.RW2/A which are of Vasant Kunj, New Delhi and RW1 even stated that before his death in the year 1996, his father Sh. Brij Lal Malhotra was residing with him in Vasant Kunj address. The said deposition clearly shows that the respondents are not in actual usage of the demised premises and same is nothing but surplus accommodation available to them. The said accommodation available to the respondents at meagre rent of Rs.30/- per month is against the scheme of DRC Act and Section 14(1)(d) is clearly attracted.
33 Having considered that law on the subject, the facts of the present case would clearly set out that the respondent no.1 and 2 are not in actual physical usage of the demised premises before six months prior to filing of the present petition. The petitioner has shown by preponderance of probability that respondent no.1 and 2 were not regularly and actually residing in the demised premises and as such onus had shifted to the respondent to disprove the same. The respondents having available with them electricity bills of 2015, 2017 and 2018, could have proved electricity or any other utility bills of 2013 to show continuous usage and occupation by them of demised premises. The respondent Pages 24 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors no.1 and 2 having parted with the possession of the demised premises is liable to be evicted on the ground under Section 14(1)(d) DRC Act.
Section 14(1)(j) - tenants caused or permitted to be cause substantial damage to the tenanted premises 34 The petitioner alleged this ground on the basis of site map and photographs of the demised property. The site plan was exhibited Ex.PW4/1, however photograph of the property was not exhibited. The petitioner next relied on testimony of RW1 and RW2. RW1 admitted that his father Sh. Brij Lal Malhotra and his brother Respondent no.2 had carried out structural alterations and constructions. Respondent no.2 in his cross examination as RW2 also admitted to have carried out structural changes in the demised premises. However, neither of the two were confronted with any photographs of the demised premises, nor any of them questioned as to the exact changes and alterations done.
35 In support of the above averments, the petitioner has led no evidence to show any proof of damage or construction. There is only allegations, denial and verbal statements. The same is not sufficient to prove the conditions of Section 14(1)(j) DRC Act. The sections requires proof of substantial damage to the suit premises. The petitioner in the present case has not just failed to prove any damage but also could not prove any substantial damage to the property. This Court finds that the petitioners have failed to prove any substantial damage to the tenanted property and therefore ground Section 14(1)(j) are not proved.
RELIEF 36 In view of the aforesaid discussion, the petitioner has been able to prove all the ingredients required to prove an eviction petition under 14(1)(d) DRC, Pages 25 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors Act to obtain an order in his favour in respect of demised premises. The petition qua ground of illegal sub-letting under Section 14(1)(d) DRC Act is therefore allowed. The petitioners have failed to prove the ingredients of Section 14(1)(j) DRC and therefore the present petition qua ground of Section 14(1)(j) DRC Act is dismissed.
37 Next point of consideration would be if respondent no.1 and 2 are entitled to benefits of Section 15(1) DRC Act. The petitioner has maintained that respondent no.1 and 2's father Sh. Brij Lal Malhotra was last paying rent of Rs.15/- per month. The petitioner has also relied on his legal notice dated 10.02.2013 Ex.PW1/7 (Colly) (OSR) and argued that the respondent has even admitted receipt of legal notice. The respondent no.1 denied any rent being paid to petitioner, however admitted of having paid rent to father of petitioner. Respondent no. 2 has admitted that his father was paying rent rent to Petitioner's father and brother/ respondent no.3 and stated that rent last paid was Rs.50/-. The respondent no.1 and 2 reiterated his defence that petitioner has no locus to file the present petition since respondent no.1 and 2 have independent title over the demised premises.
38 During cross examination of RW1 he was confronted with Ex.RW1/P1 (OSR), Ex.RW1/P2 (OSR) and Ex.RW1/3 (OSR) wherein he admitted signatures of his father. Even RW2 also admitted signatures of his father. Rest of the contents of these receipts were denied. RW1 although denied receipt of demand notice, however RW2 admitted receiving rent and also having not paid any rent to petitioner or respondent no.3 after receipt of notice Ex.PW1/7. There is clear cut admission by the respondent no.1 and 2 of their father being tenant in the demised premises and the respondent no.1 and 2 were duty bound to establish the lawful rent which was to be paid by them. Not just establish, the Pages 26 of 27 RC ARC No. 6012 of 2016 Praveen Jain v. Mela Ram Malhotra & Ors respondent no.1 and 2 was even to show that he has paid or tendered lawful rent to the petitioner or his brother/ respondent no.3.
39 The present petition is thus first default on part of the respondent no.1 and 2 and they are entitled to benefit of Section 15(1) DRC Act. The demand notice dated 10.02.2013 Ex.PW1/7 was qua rent for the period of three years preceding the notice i.e. January 2010 to December 2012 which @Rs.30/- per month would be Rs.1,080/-. The respondent no.1 and 2 have thus to pay rent of Rs.540/- each towards rent due for the period of January 2010 to December 2012. The respondent no.1 and 2 were further duty bound to continue to pay rent from January 2013 onwards till date. Till date i.e. October 2024, rent for 262 months i.e. from January 2013 to September 2024 is due. The respondent no.1 and 2 are thus directed to pay Rs.4470/- each towards lawful rent due towards the petitioner for period of January 2010 to September 2024 within a period of one month from this Order, to avail the benefits of Section 14(2) read with Section 15(1) DRC Act. As per Section 26(2) DRC Act, the respondent no.1 is also liable to pay interest @15% per annum on the above amount of lawful rent due from the date on which it was due. No order is passed against respondent no.3 who is co-landlord and merely proforma party in the present petition.
40 Ordered accordingly. File be consigned to record room after due
compliance. Digitally signed
by PARAS
PARAS DALAL
Date:
DALAL 2024.10.22
16:38:42
+0530
Announced in the open Court (PARAS DALAL)
on October 22, 2024 ARC-CCJ-ACJ(South)
Saket Courts/Delhi
Pages 27 of 27