Delhi District Court
Smt. Chanderwati vs Sh. Inderjeet Singh on 9 July, 2014
IN THE COURT OF SHRI M. P. SINGH, SENIOR CIVIL JUDGE, RENT
CONTROLLER, (EAST), KARKARDOOMA COURTS, DELHI
Eviction Petition No.14/13
Unique Identification Number: 02402C0200632012
Smt. Chanderwati
W/o Sh. Shyam Kumar
R/o 141142, Ist Floor,
Guru Ram Dass Nagar, Delhi92 ............... Petitioner
Versus
Sh. Inderjeet Singh
S/o Late Harbans Singh
R/o 121, Girdhar Enclave, Sahibabad (on road)
Ghaziabad, UP
Also at 353, West Guru Angad Nagar,
Laxmi Nagar, Delhi110092 ...............Respondent
Date of institution of case - 18.07.2012
Arguments heard on - 04.06.2014
Date of Order 09.07.2014
ORDER
1. This order shall decide the question whether the respondent be granted leave to contest the instant eviction application under clause (e) of proviso to section 14 (1) of the Delhi Rent Control Act, 1958 (for short 'the Act').
2. Vide a registered sale deed dt. 25.09.2006 petitioner purchased property bearing no. 353, West Guru Angad Nagar, Laxmi Nagar, Delhi92 E14/13 Chander Wati vs. Inderjeet Singh Page 1 of 15 (measuring 25 sq. yards) from one Ms. Purnima Manna. Ms. Purnima Manna had in turn purchased it from one Nirmal Singh vide GPA sale documents dt. 08.07.1994. This property has two shops at its ground floor. One of the two shops is under respondent's occupation. The adjoining shop is stated to be under the occupation of Preminder Sapru and Ms. Dulari Bhatt.
3. Petitioner avers that Ms. Purnima Manna, the previous owner, had duly intimated the respondent, in her presence on 25.09.2006 itself, about transfer of the property, including the two shops, vide sale deed dt. 25.09.2006 and that he was required to henceforth pay the monthly rental of Rs. 300/ with effect from 01.10.2006 to her (petitioner). She further avers that respondent started paying monthly rental of Rs. 300/ to her (petitioner) with effect from 01.10.2006. She goes on to aver that respondent has paid rent to her till December, 2009, last rent being paid on 10.12.2009. Petitioner places reliance upon a rent deed dt. 08.07.1994 which purports to have been executed between Ms. Purnima Manna and the respondent Inderjeet.
4. Besides the aforesaid property, petitioner owns a flat bearing no. 141142, 1st floor, Guru Ram Dass Nagar, Delhi92 measuring 70 sq. yards, which is a two plus one room set flat.
5. Petitioner's husband is a retired MCD employee. Apart from her husband, petitioner has in her family, widow of her predeceased son Yogesh with her son Aman aged 20 years and two minor daughters. She also has a married son namely Gagan, his wife and his two minor daughters. Family of E14/13 Chander Wati vs. Inderjeet Singh Page 2 of 15 predeceased son Yogesh lives at 141142, 1st floor, Guru Ram Dass Nagar, Delhi92, whereas Gagan's family lives in the property in question. Petitioner and her husband, however, at times stay with son Gagan and at times stay with the widowed daughterinlaw.
6. Petitioner submits that she requires the tenanted shop under respondent's occupation for her grandson Aman son of late Yogesh, aged about 20 years, who is a certificate holder in computer. Petitioner states that Aman needs a shop to run some business connected with computer. She avers that all her family members are dependent upon her for their residence etc. Petitioner thus seeks to evict the respondent from the shop in question.
7. The respondent, in the affidavit accompanying his application seeking leave to contest, at the very outset, states that there does not exist any relationship of tenantlandlord between him and the petitioner and that he is in occupation of the shop since 24.05.1992 in his 'individual capacity'. He also states that he was neither the tenant of Nirmal Singh nor that of Ms. Purnima Manna and that he never paid any rent to them. He goes on to state that at no point of time he paid any rent even to the respondent. He avers that in 1992 the then owner Sh. Nirmal Singh had received Rs. 1,25,000/ from him and executed a receipt in lieu thereof. His averments in this regard, in para 1 (b) of his affidavit, are as follows:
"Because in the year 1992 the then owner of the property Mr. Nirmal Singh received a sum of Rs.1.25 lakh from respondent and executed a receipt thereto for receiving of the said amount and similarly on E14/13 Chander Wati vs. Inderjeet Singh Page 3 of 15 18/2/93 Ms. Sunita Koul & Ms. Dulari Bhatt in order to settle their maternal nephew Preminder Sapru paid a sum of Rs.1.30 lakh to the then owner Nirmal Singh wherein after constructing the first floor only, the rights were transferred by Nirmal Singh in favour of Purnima Manna wife of Mr. Sanjay Manna in July 1994. Though, the money was paid by respondent in the year 1992 when property itself valued somewhere around 45 lakhs of rupees, the sub division in the property was not permissible and no subdivision sale could have been registered at that point of time as the property itself is 25 sq. yards. Whence the receipt was issued and no rent was ever demanded nor any rent was ever paid."
8. The respondent thus asserts that he is operating from the shop in his 'independent capacity' with an electricity meter in his own name and having paid the 'consideration' to Nirmal Singh. He goes on to assert, "Since this fact was known to Nirmal Singh and Purnima Manna no eviction proceedings have been preferred by them in last almost 20 years." He further states that petitioner has neither filed any letter of attornment in her favour nor has she filed any rent receipt to show the existence of landlordtenant relationship. In paragraph 1 (n) of his affidavit, which is as under, respondent asserts that he rather has 'ownership' right in the shop.
"Because respondent in order to protect his occupancy and ownership has paid due consideration in the year 1992 and has not paid a single penny as rent thereafter and is enjoying the property in independent capacity."
9. The respondent also questions the genuineness of the registered sale deed executed by Ms. Purnima Manna in petitioner's favour. He alleges that Ms. Purnima Manna's signatures on all the six pages thereof are forged E14/13 Chander Wati vs. Inderjeet Singh Page 4 of 15 because 'signatures on the sale deed goes upward in ascent in all six pages whereas in rent note so executed by Purnima Manna on both pages signature descents/goes downward, whereas in the case of Preminder Sapru the signature on rent deed is in straight line and there is clear cut overwriting on the signatures in the formation of 'p''. He also alleges that his signatures on the rent deed dt. 08.07.1994 are 'manipulated'. Not only this, he goes on to allege in para 1 (g) of his affidavit:
"That the sale deed which has been placed on court record by the present petitioner is for a consideration of Rs. 1.00 lakh whereas way back in 1992 Inderjit paid Rs. 1.25 lakhs for the shop in question and respondent has paid Rs. 1.30 lakh in 1993 to Nirmal Singh prior to transferring first floor in the name of Purnima Manna. This fact of purchase of first floor was very much in the knowledge of Purnima Manna and because of no subdivision in the property is permissible that is why no proceeding of any nature was initiated by her. Some property dealer under the garb of present petitioner is preferring the present petition through legal aid counsel in which no rent of any nature has ever been paid by the respondent to petitioner, which further proves malafides of petitioner."
10. Respondent points out that in para 14 of her petition, the petitioner stated that the shop had been let out to him with effect from 01.10.2006, whereas in para 18 (a) of her petition she stated that he was inducted as tenant by the previous owner Ms. Purnima Manna. He therefore urges that this suffices to grant unconditional leave to contest in his favour.
11. Respondent goes on to state that petitioner has 'ample space' as she E14/13 Chander Wati vs. Inderjeet Singh Page 5 of 15 purchased the property on 'as is where basis'. He avers that in case of paucity of space the petitioner can very well raise further construction of additional floors which would then suffice to meet her space requirement. Petitioner also questions petitioner's bonafide requirement on the premise that she is negotiating with a builder to sell out the property. He also states that the petitioner has 'alternate sufficient accommodation'. On these averments respondent seeks leave to contest the instant eviction petition.
12. Petitioner filed her reply to the leave to defend application along with her counteraffidavit. She states that the receipt, copy of which is placed on record by the respondent, clearly reflects that possession of the shop was not handed over to him till 04.06.1992 and that the same is contrary to his assertion that he came into occupation of the shop on 24.05.1992. She avers that this document does not confer any ownership right and that it amply reflects that the shop in question was agreed to be given to respondent on monthly rent of Rs. 300/ and as such, his plea of 'individual capacity' is without substance. She further states that the respondent himself admits that Nirmal Singh had transferred the property in Ms. Purnima Manna's favour in July 1994. She asserts that the respondent has failed to raise any triable issue. Denying other averments she seeks dismissal of the leave to defend application.
13. Respondent filed his rejoinder wherein he reiterated his averments as set out in his leave to defend application and the affidavit and refuted those E14/13 Chander Wati vs. Inderjeet Singh Page 6 of 15 made by the petitioner. In addition thereto, he states that he paid 'charges for occupying the ground floor' to the previous owner Nirmal Singh and for this reason no rent receipt was ever issued to him. Denying other averments, he seeks dismissal of the eviction petition.
14. I have heard arguments at Bar and perused the record of the case.
15. The very first question that falls for decision is the capacity in which the respondent is occupying the shop. The respondent states that he is in occupation of the shop since 24.05.1992 in his 'individual' and 'independent capacity'. But, what precisely does he mean by the two phrases 'individual capacity' and 'independent capacity' is not at all clear. Under the law 'individual capacity' and 'independent capacity' by itself does not convey any sense. Under the Transfer of Property Act, 1882 (for short 'TPA') there is no such acquisition of property in, what the respondent terms as, 'individual capacity' and 'independent capacity'. The capacity of a person in occupation of a property can be either as a mortgagee, lessee, licencee, trespasser or its owner. The respondent, as per his own averment, is certainly not a mortgagee as the amount of Rs. 1,25,000/ that he paid was not given as a 'loan'. Even otherwise, a mortgage cannot be created without the mandatory legal requirements as envisaged in Section 59 of TPA. Respondent is also not a licensee. He is neither a trespasser in the property. On a holistic reading of respondent's affidavit it does appear that his claim is that he is the virtual owner of the shop having paid Rs. 1.25 to Sh. Nirmal Singh. However, these E14/13 Chander Wati vs. Inderjeet Singh Page 7 of 15 claims to ownership and to 'individual' and 'independent' capacities rest on a foundation of sand. This is for the simple reason that under the law a title to an immovable property does not pass without following the requirement of section 54, TPA. In other words, ownership of an immovable property vests on the basis of a document called sale deed registered with the SubRegistrar. Respondent has no document whatsoever evidencing transfer of ownership of the shop in his favour. All that he has is a receipt. But this receipt would not at all suffice, under the law, to vest title qua the shop in his favour. In a nutshell, his claims to ownership and 'independent' and 'individual' capacities are without any substance.
16. After having deciphered that the capacity in which the respondent is in occupation of the shop is not that of a mortgagee or a licencee or a trespasser or an owner, it now requires to be determined whether he is in occupation as a lessee. The respondent refers to a receipt executed by Nirmal Singh in his favour in lieu of Rs. 1,25,000/ which purported to give him an 'independent capacity' visavis the shop. Copy of this receipt has been placed on record by respondent himself. This receipt is in vernacular Punjabi and the respondent furnished its translated version. Its translated version reads as follows:
"I Sardar Nirmal Singh s/o Sardar Mohan Singh, House No. 394 West Guru Angad Nagar, Delhi92 and Inder Jeet Singh Kaul, Rs. 10,000/ it half comes Rs.5,000/, one shop at side with two shutters, whose PAGRI has been fixed at Rs.1,25,000/ and there is time for 2 months and rent will be Rs. 300/ per month, in which after adding amount of earnest money, balance Rs. 1,15,000/ (Rupees one E14/13 Chander Wati vs. Inderjeet Singh Page 8 of 15 lakh and fifteen thousand only) stands due, in which manner Sardar Nirmal Singh will require money, Sardar Inder Jeet Singh will give him money as its commission.
Sardar Avtar Singh Jee"
17. The aforesaid receipt reveals something very very vital. And the revelation is that the respondent had been inducted into the shop on payment of pagri amount and at monthly rent of Rs. 300/. The fact that the aforesaid receipt clearly reflects that the respondent came into occupation of the shop on monthly rental clinches the issue in petitioner's favour that he is occupying the shop as a tenant. It was a common practice amongst the people at large in Delhi to let out their properties on a hefty pagri to some tenant. The payment of pagri, as per the common practice, used to be associated with letting out premises on rent. This practice was sought to be curbed by section 5 of the Act. What is absolutely clear to me is that the transaction between Nirmal Singh and the respondent was a lease under section 105, TPA. This being his legal status there can be no manner of doubt that the respondent had come into occupation of the shop as a lessee. His legal character of a lessee qua the shop would not change to that of an owner without undergoing the mandatory requirements of law. A tenant continues to be a tenant and the mere fact that he has been in occupation of the shop for the last more than 20 years will not convert his status to that of an owner.
18. In so far as the fact that Nirmal Singh had transferred the property to Ms. Purnima Manna is concerned, the respondent admits it, albeit to the E14/13 Chander Wati vs. Inderjeet Singh Page 9 of 15 limited extent that the transfer was only qua the first floor. However, the assertion that the shop on the ground floor was not transferred is not a correct one in the face of the fact that there is no document of transfer in favour of the respondent and that GPA sale documents in favour of Ms. Purnima Manna makes a mention of the transfer of the entire property. That apart, there are enough judicial rulings to hold that 'ownership', in the context of the Act, does not mean absolute ownership. The only requirement is that the landlord must have better title than the tenant and must have rights in the premises that are more than that of a tenant. Delhi High Court, interpreting the word 'owner' in clause (e) of proviso to section 14 (1) of the Act in T. C. Rekhi vs. Usha Gujral 1971 RCJ 322, observed as under:
The word 'owner' as used in this clause has to be construed in the background of the purpose and object enacting it. The use of the word 'owner' in this clause seems to me to have been inspired by definition of the word 'landlord' as contained in section 2 (e) of the Act which is wide enough to include a person receiving or entitle to receive the rent of any premises on account of or on behalf of or for the benefit of any other person......."
19. This interpretation of the word 'owner' was approved of by Apex Court in Smt. Shanti Sharma & Ors. vs. Smt. Ved Prabha & Ors. (1987)4 SCC 193. Further, in the matter of Tahira Begum vs. Sumitra Kaur & Anr. 166 (2010) DLT 443, relying on Shanti Sharma (supra), it was observed, "For the purpose of section 14 (1) (e) of the Act, E14/13 Chander Wati vs. Inderjeet Singh Page 10 of 15 ownership is not to be understood as absolute ownership, but only as a little better than the tenant. So what has to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property, the title better than the respondents"
20. Therefore, Ms. Purnima Manna certainly had a better claim to ownership qua the property, including the shops, than the respondent. Ms. Purnima Manna transferred the property to the petitioner vide the aforesaid registered sale deed and consequently the latter is now the title holder of the property in question. Visavis the respondent, petitioner stands in the position of owner of the shop. The contention that Ms. Purnima Manna's signatures on the registered sale deed is not genuine is perfunctory at best. The sale deed is a registered one and consequently there is a presumption under the law that it was duly executed.
21. The legal position now is that the respondent is the tenant of the shop and the petitioner its owner. In terms of section 2 (e) of the Act which defines 'landlord' the petitioner is entitled to receive the rent of shop and consequently, she is the landlord of the shop in question and the respondent is the tenant. The fact that there is no rent receipt to evidence payment of monthly rental cannot persuade me to take a different view.
22. It was argued that Nirmal Singh, the previous owner, is required to be examined to prove the respondent's contentions. But his evidence cannot and would not traverse the legal position that a mere transfer of Rs. 1.25 lacs vide E14/13 Chander Wati vs. Inderjeet Singh Page 11 of 15 the aforesaid receipt would not at all suffice to confer ownership. He would at the most 'prove' the contents of the receipt. But the fact of the matter is that the receipt records an illegal transaction visavis the pagri. It is rather unusual that the respondent has set out an illegal transaction as his primary defence.
23. It was the contention that the petitioner can meet her requirement of additional accommodation by raising further construction on the first floor. This ground merits rejection at the very outset. A tenant cannot ask his landlord that he cannot evict him and that he must meet his growing needs and requirements of space by making investments in construction of additional structure. I have not come across any judicial decision which holds that landlord's bonafide need and requirement for space can be defeated on the ground that he can very well make investments in the premises in the form of additional structures. I see no reason as to why the landlord must be asked by the Court to spend money in raising constructions to meet his growing needs and requirements if such need and requirement can be met from the tenanted premises. If this argument of the tenant is taken to its logical limits, then the tenant can very well argue that the petitioner may as well purchase another property by spending money to meet his growing needs and requirements. Bonafide need and requirement cannot be considered from the point of view of what the landlord can possibly at some future date construct or purchase. Such bonafide need and requirement has to be E14/13 Chander Wati vs. Inderjeet Singh Page 12 of 15 considered as on the date of filing of the case. Apex Court in the matter of Carona Ltd. vs. M/s Parvathy Sawaminathan & Sons 2007(2) Rent Law Reporter 481 held , "In our judgment, the law is fairly settled. The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit. Thus, if the plaintiff has no cause of action on the date of filing of the suit, ordinarily he will not be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Conversely no relief will normally be denied to the plaintiff by reason of any subsequent event, if at the date of institution of the suit he has a substantive right to claim such relief." Therefore, the tenant is not correct in arguing that the landlord can very well spend money and raise construction to meet her requirement.
24. It was urged that the petitioner has ample space and that she has alternate sufficient accommodation. However, it has not been specified as to where does that ample space lie. There are only two shops in the premises and both the shops are under tenancy and therefore, it is rather difficult to accept this stand that the petitioner has ample space to meet her requirement. Similarly, the respondent has not specified as to where does the alternate sufficient accommodation lie for carrying out the business. Such a business certainly cannot be carried out from one's own bedroom.
25. It was also contended that the respondent does not have any letter of attornment in her favour. Under the law there is no requirement of obtaining E14/13 Chander Wati vs. Inderjeet Singh Page 13 of 15 any letter of attornment in writing after purchasing the property from the previous owner. In this regard the respondent may take note of section 109, TPA.
26. The respondent sought to point out that the petitioner had made conflicting averments in paras 14 and 18 (a) of her petition. The averments in the two paragraph are not contradictory. All that the petitioner means to say in para 14 of her petition is that the respondent came under her tenancy with effect from 01.10.2006. This is fortified by a holistic reading of the entire petition.
27. The next ground is that petitioner's motive is merely to get the shop and then transfer out the same through a dealer. This ground raises no triable issue. In the event of the petitioner not putting the shop to use, as stated in the petition, recourse to section 19 of the Act can very well be taken. Decisions reported as Ajit Walia vs. Jagdeep Binepal, 2005 (1) RCR (Rent) 267 and Krishna Chopra vs. Smt. Raksha, 1999 (2) RCR (Rent) 690 in this context can be referred to.
28. On the issue of bonafide requirement, respondent has failed to raise any triable issue. Petitioner asserts that she requires the shop under respondent's occupation so that her grandson Aman son of late Yogesh, aged about 20 years, who is a certificate holder in computer, can set up shop to run some business connected with computer. The fact that Aman is a certificate holder in computer studies lends assurance that he genuinely contemplates E14/13 Chander Wati vs. Inderjeet Singh Page 14 of 15 such a business idea. The respondent has thus to vacate the shop under his occupation to meet this bonafide requirement of the petitioner.
29. In the light of the aforesaid discussion, I have no hesitation to hold that the respondent has failed to raise any triable issue. I am of the opinion that the respondent has failed to disclose such facts as would disentitle the petitioner from obtaining an order for recovery of possession of the tenanted shop. Resultantly, respondent's application seeking leave to contest the instant eviction petition stands dismissed. Eviction order qua the shop measuring 13' X 7' 9'' (two side open) forming part of property no. 353, West Guru Angad Nagar, Laxmi Nagar, Delhi92 (as shown bounded in red colour in the site plan annexed with the petition which is exhibited as Ex. C1 while dictating the present order for the purpose of identification) in petitioner's favour and against the respondent is passed. File be consigned to record room.
Announced in the open court (M.P. SINGH)
Dated:09.07.2014 Senior Civil Judge/Rent Controller (East)
Karkardooma Courts, Delhi
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