Indian Kanoon - Search engine for Indian Law

Delhi District Court

Shri Roop Singh S/O Shri Birbal @ Harmal vs Shri Kulanand Lakhera S/O Shri Pati Ram on 5 April, 2014

                                                    ­1­

 IN THE COURT OF SH. J.R. ARYAN : DISTRICT & SESSIONS JUDGE­CUM 
    ADDITIONAL RENT CONTROL TRIBUNAL : NORTH­EAST DISTRICT : 
                            KARKARDOOMA COURTS : DELHI :


RCT No. 25/2013
Unique Case ID No. 02402C021442013

Shri Roop Singh S/o Shri Birbal @ Harmal, 
R/o H.No. 158, Gali No.3, Village Gamri, 
Bhajanpura, Delhi.                                                              .......Appellant. 
      vs. 
Shri Kulanand Lakhera s/o Shri Pati Ram, 
R/o B­398, Gali No.19, 
Bhajanpura, Delhi­110 053.                                                      .......Respondent. 

Date of Institution :­ 16.07.2013
Date of Reserving for Order :­ 29.03.2014
Date of Pronouncement :­ 05.04.2014.

O R D E R :

­

1. Landlord applicant Roop Singh whose eviction petition under Section 14(1)(a) Delhi Rent Control Act seeking eviction of respondent Kulanand Lakhera from the tenanted premises consisting two rooms kitchen open Court yard, latrine, bathroom measuring 100 sq yards as part of the property No. D398, Gali No.19, existing in Khasra No. 321, Gujjaran Khadar, Ghonda, Delhi, was dismissed by ld. ARC by judgement dated 28.05.2013 has filed the present appeal challenging that judgement. Appeal has been heard from both sides, wherein advocate Sh. Diwan Singh Chauhan appeared for the appellant RCT No. 25/2013 Page 1/14 ­2­ and counsel Sh. D.K. Mishra appeared on behalf of the respondent. ld. ARC found that appellant/applicant had failed to prove the existence of landlord tenant relationship between the parties and thus eviction petition was dismissed. It is argued by the ld. appellant counsel that ld. Trial Court failed to consider the evidence that appellant being the owner of the property was its landlord. Though there was no rent agreement executed between the parties and though at no point of time any rent receipt was issued, but then earlier tenancy coupled with documentary evidence in the form of rent agreement between the appellant and one Anil Kumar, who was previously in occupation of suit tenanted premises as a tenant under the appellant it stood duly proved that petitioner was the owner landlord. Counsel argued that respondent's plea that he had been inducted tenant by one Sh. Madan Sharma, but then respondent failed to examine Madan Sharma. A false collusive decree was obtained by the respondent against Madan Sharma in the year, 1989 and on the basis of that ex­parte decree, he pleaded and contended his tenancy under Madan Sharma and that ought not to have been given any credibility. Counsel submitted that in that civil suit in the year, 1989 respondent had not given complete address of defendant Madan Sharma in that injunction suit. Address was mentioned only of Mayur Vihar RCT No. 25/2013 Page 2/14 ­3­ without mentioning its phase and in absence of a particular phase, it was impossible to trace that address and thus ex­ parte injunction decree was the fake and collusive. Counsel further argued that in a criminal case which had been registered on the complaint of respondent Sh. Kulanand Lakhera in the year, 1997 as FIR 254/97, PS Bhajan Pura for offence under Section 448/34, Madan Sharma as a prosecution witness appeared before the Court in the year, 2012 and certified copy of that statement of Madan Sharma examined as PW6 showed that Madan Sharma denied any kind of concern or relationship with suit premises and denied to have inducted Kulanand Lakhera in the premises as a tenant on a monthly rent of Rs.150/­. Ld. counsel argued that where Madan Sharma himself gave deposition before the Court that he had never inducted Sh. Kulanand Lakhera in the premises as a tenant, the respondent's plea in the present eviction petition stood condemned and falsified that he was a tenant under Madan Sharma inducted since 1980 or that respondent had paid rent to Madabn Sharma till about the year, 2010. Counsel argued that certified copy of testimony of Madan Sharma was taken on record in this case when respondent had not objected to it and admitted that it could be taken into consideration.

2. Counsel further argued that notice of demand issued by RCT No. 25/2013 Page 3/14 ­4­ the plaintiff for defaulted period was duly proved, but it had not been replied and adverse inference deserved to be taken. Counsel submitted that PW3 Anil Kumar had been inducted tenant in the suit tenanted premises by the appellant in the year, 1998 and rent agreement in writing as Ex.PW1/3 was executed and when Anil Kumar vacated premises in th year, 2000 that appellant inducted respondent as a tenant and testimony of Anil Kumar regarding his tenancy in suit tenanted premises under the appellant has remained unchallenged. Counsel argued that this overwhelming evidence proved peitioner's claim that he was the landlord of the premises in question and respondent being defaulter in payment of rent was liable to be vacated and accordingly judgement passed by ld. Trial Court was liable to be set­aside.

3. Advocate Sh. D.K. Mishra appearing for the respondent argued that where respondent had succeeded in establishing prima facie possession of the suit premises since 1980 and which fact stood reflected from the certified copy of injunction decree thogh ex­parte against Madan Sharma passed in the year, 1989 then appellant's claim that he inducted respondent as a tenant in the premises in 2000 was rightly held false and unacceptable. Counsel aruged that if appellant had earlier inducted Anil as a tenant in suit tenanted premises in 1997 by RCT No. 25/2013 Page 4/14 ­5­ getting rent agreement executed, while inducting the respondent tenant in 2000 he ought to have got the agreement executed or at any point of time ought to have issued a rent receipt getting counter foil signed from the respondent. Counsel submitted that there was n0 convincing evidence to prove landlord tenant relationship and judgement passed by ld. Trial Court was not to be interfered.

4. I have appreciated these contentions.

5. Trial Court record shows that present eviction petition was filed on 26.04.2010 and case of the appellant Roop Singh was that he was the owner landlord of property B­398, Gali No.19, existing in Khasra No. 321, measuring 100 sq. yards situated in Gujjaran Khadar, Ghonda, as he had inherited this property from his father Sh. Birbal @ Harmal, son of Deviya. It is, however, his case that total land area of this property B­398 was 200 sq. yards and respondent Sh. Kulanand Lakhera was in possession of 100 sq. yards and approached the petitioner to take remaining 100 sq yards area on rent as the petitioner had got it vacated from his earlier tenant Sh. Anil and construction on this area consisted two rooms, kitchen, open Courtyard, latrine and bathroom. Petitioner, accordingly, inducted respondent tenant in this premises in October, 2000 on a monthly rent of Rs.1,200/­ excluding electricity and water RCT No. 25/2013 Page 5/14 ­6­ charges. It is further pleaded that respondent paid rent regularly till June, 2009, but then stopped paying rent thereafter on a plea that one Sh. Hari Singh @ Haria had filed eviction petition against him and the same was pending in the Court of ld. ARC, Karkardooma Courts, Delhi. Respondent, however, did not disclose any further details of that petition. It is further pleaded that respondent had not paid rent since July, 2009, petitioner issued a legal notice dated 13.10.2009 through his advocate, which was sent by registered post and under certificate of postage. Respondent was called upon to pay rent arrears with interest. Notice was duly served, but he failed to pay or tender the rent arrears and accordingly petitioner prayed for eviction order.

6. Respondent contested eviction petition by filing written statement with a plea that respondent had been inducted tenant in the premises in June, 1980 by Sh. Madan Sharma, son of Sh. P.N. Sharma and he had been receiving rent from the respondent regularly. He further pleaded that in the year, 1988 respondent had filed injunction suit against Madan Sharma, which was decree in his favour in April, 1989. He further pleaded that one Hari Singh @ Haria had filed the eviction petition claiming himself to be owner of the premises in question and that petition No. 213/09 was pending in the Court RCT No. 25/2013 Page 6/14 ­7­ and mentioned its date of hearing as 16.07.2010. Respondent contended that eviction petition filed by Hari Singh as well by the present case petitioner were false claims. Petitioner had no locus standi as he was neither the owner nor had ever been in possession of the suit premises. Respondent specifically denied, if he had been inducted tenant by the petitioner on a monthly rent of Rs.1,200/­ and prayed for dismissal of the eviction petition. Petitioner then filed rejoinder. Since respondent had specifically denied his relationship as a tenant with petitioner as a landlord, no order in terms of Section 15(1) DRC Act could be passed as observed by ld. ARC vide order dated 13.07.2010 and trial commenced.

7. Appellant petitioner examined himself through his affidavit evidence which he tendered as Ex.PW1/A. This affidavit evidence was reiteration of the averments made in the eviction petition. Plaintiff pleaded that he was owner of the suit tenanted premises by virtue of will Ex.PW1/1 executed by his father in his favour on 22.09.1981. He further specifically stated on oath that suit tenanted premises was earlier occupied by Sh. Anil, S/o Sh. Chander Bhan as a tenant under deponent and when Anil vacated the premises and respondent in the present case was inducted tenanted in October, 2000 on a monthly rent of Rs.1,200/­.

RCT No. 25/2013 Page 7/14

­8­

8. PW2 is the attesting witness of the will Ex.PW1/1 and he deposed accordingly. PW3 is witness Anil, who deposed that he was tenant inducted in suit tenanted premises by the petitioner Roop Singh and rent agreement dated 11.09.1998 was executed for that tenancy and he proved that rent agreement as Ex.PW1/3. He further stated that he vacated the tenanted premises and handed over its possession to the petitioner in September, 2000. PW4 Rajender Giri is an attesting witness on the rent agreement executed between petitioner and Sh. Anil and witness deposed accordingly. With that petitioner evidence concluded.

9. Respondent Kulanand Lakhera examined himself through his affidavit as Ex.RW1/A and he tendered certified copy of judgement in injunction suit decided in his favour against Madan Shama as Ex.RW1/1. He specifically deposed that he had been inducted tenant by Madan Sharma in the suit premises in 1980. He also tendered photocopy of his identity card of his place of work and copy of his ration card. He further examined a witness Sh. Vinod Singh Bisht and this witness through his affidavit evidence Ex.RW2/P1 stated that respondent was in occupation of tenanted premises since last 35 years and he had been paying rent to Madan Sharma during the life time of Madan Sharma and with that his evidence also RCT No. 25/2013 Page 8/14 ­9­ concluded.

10. Onus was upon petitioner­appellant Roop Singh to prove the point and issue that he was the landlord of the premises in question and he infact inducted respondent as tenant in October, 2000 as pleaded by him in his eviction petition. Petitioner's own case is that premises/property B­398, gali no. 19 existing in khasra no.321 was a plot measuring 200 sq. yards. Respondent Kulanand Lakhera was owner of half of that plot measuring 100 sq yards and whereas petitioner was the owner of rest 100 sq. yards through a will executed by father of petitioner in September,1981. Before proving himself to be owner of the tenanted premises in question, petitioner proceeded to assert himself to be its landlord on a plea that prior to inducting respondent as tenant somwhere in October, 2000, he had kept PW3 Anil as a tenant in the suited premises for about two years. Respondent strongly disputed this case of the petitioner and rather pleaded that he was in occupation of tenanted premises since 1980 and had been inducted tenant by one Madan Sharma son of Sh. P. N. Sharma. To prove the factum of occupation of premises in question under Madan Sharma, respondent relied upon certified copy of the judgement passed by Civil Judge, Delhi in suit no.489/89 titled Kulanand Lakhera verus Madan Sharma and that injunction suit was RCT No. 25/2013 Page 9/14 ­10­ decreed exparte in his favour by the Court. Respondent specifically pleaded that he had been inducted as tenant in premises B­398, gali no.19, Bhajanpura, Delhi comprising two rooms, latrine bath on a monthly rent of Rs.30/­ and defendant Madan Sharma had attempted to dispossess him somewhere in August 1998. Ld. Trial Court relied upon this judgement for the fact that atleast respondent was in possession and occupation of the suit tenanted premises in the year 1988 and his possession was protected by injunction decree. Ld. counsel for the appellant submitted that it was a false and collusive decree as Madan Sharma appeared as a prosecution witness in a criminal case FIR 254/97 Police Station Bhajanpura and his examination in that criminal case on 28.06.2012 revealed that he did not claim any concern at all with the premises/property B398, gali no.19, Bhajanpura. He specifically denied if he had inducted Kulanand Lakhera as tenant in the premises. Counsel tried to impress upon this Court that plea and contention of the respondent stood falsified by that statement of Madan Sharma when he was examined before the Court in June, 2012. I have given due consideration to these submissions.

11. Even if Madan Sharma deposed on certain facts in that criminal case and though statement may not be taken into RCT No. 25/2013 Page 10/14 ­11­ consideration in the present case unless witness was examined by either party in this case, but then document being relied by the petitioner himself that is the certified copy of statement of Madan Sharma shows that criminal case concerned the incident of the year, 1997. It was registered on a report lodged by the respondent Kulanand Lakhera with his address D­398, Gali No.19, Bhajanpura, Delhi. Document thus prima facie reflects that Kulanand Lakhera was in occupation of premises in question even in the year, 1997.

12. It has been argued from the appellant side that respondent has failed to prove and establish that he was inducted tenant by Madan Sharma. Even if respondent failed to prove and establish that he was inducted tenant by Madan Sharma in suit premises and though prima facie statement of Madan Sharma recorded in criminal case suggested if the respondent Kulanand Lakhera had not been inducted tenant by Madan Sharma, still if respondent is not a tenant in the premises in question or to say even if status of respondent is nothing other than an unauthorised occupant, question before the Court is whether petitioner appellant had inducted respondent as a tenant in the suit premises. It is pertinent here to take note of the pleadings in this case. Appellant applicant pleaded that he became owner of the suit tenanted premises by RCT No. 25/2013 Page 11/14 ­12­ virtue of will executed by his father somewhere in September, 1981 and he examined attesting witness of that will. Respondent specifically pleaded in written statement that he had been inducted tenant in the suit premises by Madan Sharma somewhere in January, 1980. This was a plea in confrontation to the case of the appellant/applicant and thus the appellant applicant had an opportunity to come out with specific stand qua that plea of the respondent in the rejoinder/replication. A look at the rejoinder reveals that except denial or describing respondent's plea as incorrect, no other plea was put up. If the respondent had become owner of the suit tenanted premises through a will executed in September, 1981, he ought to have pleaded details as to how he dealt with this property as regard its occupation. Respondent Kulananad Lakhera was put a question in his cross­examination and he responded positively by deposing as correct that there was no electricity and water connection either in his name or in the name of Madan Sharma in respect of the suit premises. It is none of the appellant's case then put to the respondent, if electricity and water connection in the premises were in the name of the appellant or at all if there was any electricity and water connection in premises in question. Accordingly, no plea or evidence has come on the file as to how appellant/applicant RCT No. 25/2013 Page 12/14 ­13­ dealt with suit tenanted premises about its possession whether physical or constructive, ever since he became its owner. Respondent, on the other hand, from the certified copy of injunction decree Ex.RW1/1 had brought on record that he had been in occupation of suit tenanted premises and when defendant Madan Sharma had tried dispossess him somewhere in August, 1988, he filed the suit and suit was decreed in 1989, though ex­parte. For the sake of arguments even if appellant's contention was accepted that suit was collusive, he has not taken care to assert his stand as to how he dealt with this property ever since he became its owner in 1981. Only peal of appellant is that he had inducted Anil Kumar as a tenant in the suit tenanted premises somewhere in 1997 and when Anil Kumar vacated the premises in the year, 2000, respondent was inducted tenant. The factum of tenancy of Anil Kumar has been brought on record through rent agreement Ex.PW1/3. Appellant, however, admitted in cross­ examination that while inducting respondent as tenant no rent agreement was executed and no rent receipt was ever issued. It was rightly argued from the respondent side that if appellant was alert to execute the rent agreement while inducting Anil Kumar as tenant he ought to have got rent agreement executed with respondent also and for a long period of about 9 years till RCT No. 25/2013 Page 13/14 ­14­ respondent was alleged to have paid rent to the appellant some kind of evidence by way of document ought to have been executed and brought before the Court. Injunction decree in favour of the respondent in the year, 1989 concerning suit tenanted premises creates serious doubt in the factum of tenancy of Anil Kumar in the premises in question.

13. Accordingly, I find examination of evidence and material by ld. ARC, North­East District, in this case suffers no illegality and conclusion arrived to the effect that appellant had failed to prove and establish relationship of landlord and tenant suffers no illegality or infirmity and there is no reason or ground to interfere with judgement passed by ld. Trial Court. Appeal is without merits. The same is, accordingly, dismissed.

Announced in the Open Court                                       (J.R. Aryan) 
         th

On this 5 day of April, 2014. District & Sessions Judge, NE, Karkardooma Courts, Delhi.

RCT No. 25/2013 Page 14/14