Delhi District Court
Moti Lal S/O Late Sh. Rattan Lal vs Rajeev Sharma S/O Late Sh. Net Ram on 27 August, 2012
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE
(SOUTH) & ADDITIONAL RENT CONTROL TRIBUNAL,
SAKET, NEW DELHI
(1) ARCT No.04/2012
ID No.: 02406C0008982012
Moti Lal s/o late Sh. Rattan Lal
R/o 72/1, Yusuf Sarai Main Market,
Mehrauli Road, New Delhi. ... Appellant
Versus
1. Rajeev Sharma s/o late Sh. Net Ram,
2. Sanjeev Sharma s/o late Sh. Net Ram,
Both R/o 40A, Yusuf Sarai, New Delhi.
3. Ram Kumar Verma s/o late Sh. Ratan Lal,
R/o 72/1, Yusuf Sarai Main Market,
Mehrauli Road, New Delhi. ... Respondents
(2). ARCT No.05/2012
ID No.: 02406C0010762012
Ram Kumar Verma s/o
late Sh. Rattan Lal Verma
R/o 302, Gautam Nagar,
New Delhi. ... Appellant
ARCT No. 04/2012 & 05/2012 1 of 22
Versus
1. Rajeev Sharma
2. Sanjeev Sharma
Both sons of late Pt. Net Ram Sharma
Both R/o A40, Yusuf Sarai, New Delhi.
3. Moti Lal s/o late Sh. Ratan Lal Verma,
R/o 302, Gautam Nagar, New Delhi. ... Respondents
Instituted on: 16.01.2012 & 17.01.2012 respectively.
Judgment reserved on: 23.08.2012
Judgment pronounced on : 27.08.2012
J U D G M E N T
1. Both these appeals arise out of the judgment dated 05.12.2011, passed by Sh. Sandeep Yadav, Rent Controller (South) on the file of case registered as E85/2009 (1997) and hence have been heard and are being decided together through this common judgment.
2. It may be mentioned here that the case in which the impugned judgment was passed, was preferred by Sh. Net Ram Sharma son of Pt. Chunni Lal Sharma on 19.08.1997 seeking an order of eviction under Section 14(1)(b) of Delhi Rent Control Act ARCT No. 04/2012 & 05/2012 2 of 22 1958 (hereinafter referred to as "the DRC Act") in respect of shop no. 72/1, Main Market, Yusuf Sarai, Mehrauli Road, New Delhi (hereinafter referred to "the tenanted premises"). The petition alleged Ram Kumar Verma (appellant in ARCT No. 05/2012) to be the tenant at the rental of Rs. 140/ per month excluding all other charges. It also alleged that Ram Kumar Verma ("the tenant") had sublet, assigned or parted with possession of part of the tenanted premises in favour of Moti Lal (appellant in ARCT No. 04/2012). The petition was contested by both the appellants and resulted in the judgment dated 05.12.2011 rejecting their respective contentions and upholding the case of the petitioner. It may also be mentioned here that the original petitioner Net Ram Sharma died during the pendency of the proceedings and the cause of action having survived in favour of his sons Rajiv Sharma and Sanjeev Sharma (respondents no.1 and 2 in both the appeals), they took over the eviction proceedings on their application under Order 22 Rule 3 CPC being allowed and are now the Decree Holders.
3. The appellants in both the appeals seek the impugned judgment to be set aside, though their contentions are on different lines contrary to each other.
ARCT No. 04/2012 & 05/2012 3 of 22
4. The appeals have been resisted by the Decree Holders (respondents no.1 & 2).
5. I have heard arguments of Sh. Ajit Kadian proxy for and on instructions of Sh. S. C. Singhal, advocate for appellant Moti Lal, Sh. Niranjan Saha, advocate for appellant Ram Kumar Verma and Sh. Sanjay Aggarwal, advocate for respondents no. 1 and 2. I have gone through the trial court record.
6. The case of the Decree Holder before the Rent Controller was that the tenanted shop formed part of the property which earlier bore municipal number 71/1 Bazar Yusaf Sarai, New Delhi. He claimed that the shop was let out in favour of appellant Ram Kumar Verma in 1953 against a rent note dated 06.12.1953. He alleged that the tenant appellant Ram Kumar Verma had sub let, assigned or otherwise parted with possession of a part of the said shop in favour of appellant Moti Lal, without obtaining his consent in writing. He alleged that the shop had been partitioned and the portion shown as ABCD in the site plan (Ex. PW 1/1) filed with the petition had come in the exclusive possession of appellant Moti Lal, who had put his own lock thereupon and was running his independent business therein.
7. Both the appellants contested the case of the Decree Holder ARCT No. 04/2012 & 05/2012 4 of 22 through their independent written statements, each attributing collusion involving the other and the Decree Holder. Noticeably, appellant Moti Lal is younger brother of appellant Ram Kumar Verma.
8. As per defence of appellant Ram Kumar Verma in his written statement, he denied the case of the Decree Holder about the tenanted portion being earlier part of property bearing municipal no. 71/1, Bazar Yusaf Sarai, New Delhi. He claimed that the initial letting out was made by Sh. Chunni Lal, late father of the original petitioner Net Ram Sharma (since deceased). He claimed that the tenanted shop had been taken on rent in or around February, 1950 under oral tenancy. He, thus, disputed the case of the Decree Holder about the tenancy having been created through the rent note (Ex. PW 1/2) dated 06.12.1953 which relates to distinct property bearing no. 71/1, Bazar Yusaf Sarai, New Delhi.
9. Though raising issues about the existence of relationship of landlordtenant between the parties, the appellant Ram Kumar Verma, in his written statement, conceded that he had been paying rent to the Decree Holder after the death of the original landlord. He conceded the case of the Decree Holder about part ARCT No. 04/2012 & 05/2012 5 of 22 of the tenanted shop being in the exclusive possession of appellant Moti Lal. But then, his explanation was that Moti Lal being his younger brother and having earlier worked with him as his authorised representative had turned dishonest and had illegally/forcefully occupied the said portion of the tenanted premises. At the same time, appellant Ram Kumar Verma contended that the subletting alleged being prior to 09.06.1952, no consent or permission of the landlord was required and, therefore, the case under Section 14(1)(b) DRC Act could not be agitated.
10.Appellant Ram Kumar Verma additionally pleaded that a new tenancy had been created in his favour on account of enhancement of rent with effect from April, 1997 and, therefore, cause of action if any accruing in favour of the Decree Holder stood extinguished.
11. Appellant Moti Lal, in his written statement, denied he had been inducted as a subtenant in a part of the tenanted shop. According to him, the shop in question had two portions for the last so many years and the portion in question demarcated in the site plan (Ex. PW 1/1) had been in his exclusive possession for the last more than 30 years. He claimed to be a tenant in the ARCT No. 04/2012 & 05/2012 6 of 22 said portion in his own independent rights. He further claimed that he had been paying rent at the rate of Rs. 30/ per month to the Decree Holder in respect of the said premises but the Decree Holder had not issued any rent receipt. He alleged that his elder brother appellant Ram Kumar Verma had developed animosity against him and had joined hands with the Decree Holder to trigger this case on the basis of false and fabricated documents.
12.Each side led evidence before the Rent Controller. The original petitioner Net Ram Sharma (since deceased) examined himself as PW1. Additionally, he also examined Moti Ram as PW2, primarily to corroborate his case to prove the rent note Ex. PW 1/2. The appellant Ram Kumar Verma examined himself as RW1. The appellant Moti Lal examined himself as R2W1. He also examined Mr. Mehar Singh Rohilla, as R2W2 in support of his case that the shop in question has two portions and the portion in question has always been in use of the appellant Moti Lal.
13.The learned Rent Controller rejected the contentions of the appellants. He found the Decree Holder to have brought home the case of subletting and thus passed the eviction order.
14.In the appeal, appellant Ram Kumar Verma has argued that the ARCT No. 04/2012 & 05/2012 7 of 22 story of the tenanted shop being part of property no. 71/1 has been fabricated and, therefore, reliance on rent note Ex. PW 1/2 dated 06.12.1953 is not correct. It has been argued that the Decree Holder has not led any evidence of the fact that municipal number was subsequently changed from 71/1 to 72/1. It was submitted with reference to the site plan Ex. PW 1/1 that the premises no. 71 was an adjoining shop which had two portions, one abutting the shop in the eastern side being portion known as 71/2. In this context, reference was also made to the site plan filed by the appellant Ram Kumar Verma which shows the properties in the market to be consecutively numbered, starting with portion described as 70/2 on the East side followed by property no. 72 divided into several portions existing on the Western side of the said other property.
15. The learned Rent Controller, in para 10 of the impugned judgment, has noted the contentions of the appellant Ram Kumar Verma in this regard. While noticing that the Decree Holder has not led any evidence with regard to the change of the municipal number, the learned Rent Controller declined to extend any benefit to the opposite side on the ground that this would not make any difference in view of the fact that it has ARCT No. 04/2012 & 05/2012 8 of 22 been admitted by the appellant Ram Kumar Verma in his written statement that he is tenant in the shop shown in the site plan Ex. PW 1/1 as forming part of property no. 72/1 Yusaf Sarai Main Market, Mehrauli Road, New Delhi which was the property from which eviction was being sought.
16.I agree with the conclusions reached by the Rent Controller in this regard. The appellant Ram Kumar Verma having admitted he being a tenant in the said shop and he having attorned in favour of the Decree Holder in such respect, the question of change of the municipal number becomes irrelevant, particularly as the evidence unmistakably shows induction of appellant Moti Lal in a portion of the shop in question much after 09.06.1952, the crucial cutoff date for Section 14(1)(b) DRC Act.
17.The appellant Ram Kumar Verma admits he having been inducted as tenant in the tenanted shop shown in site plan Ex. PW 1/1,(which would include portion ABCD described therein) as also the further case of the Decree Holder that part of the said tenanted shop, namely the portion shown as ABCD in Ex. PW 1/A had come in the exclusive possession of appellant Moti Lal. But, the latter has claimed to be a tenant in his own ARCT No. 04/2012 & 05/2012 9 of 22 independent right in the said portion. In the facts and circumstances, it is necessary to examine the veracity of the said claim of appellant Moti Lal first, as it runs counter, not only to the case of the Decree Holder but also to that of his elder brother, the appellant Ram Kumar Verma who described the occupation of Moti Lal of the portion in question to be forcible and illegal.
18. PW1 deposed along the lines of the case setup in the eviction petition. He affirmed on oath that the shop as a whole including the portion ABCD shown in site plan Ex. PW 1/1 was let out to appellant Ram Kumar Verma. According to his evidence, the appellant Ram Kumar Verma had inducted appellant Moti Lal in the portion ABCD as a subtenant.
19. Appellant Ram Kumar Verma appearing as RW1 deposed that appellant Moti Lal had earlier worked with him in the tenanted shop assisting him as his authorised representative. He deposed that Moti Lal had engaged him in a litigation before the Civil Court claiming himself to be a tenant in the portion in question in his own independent rights and had secured orders in the said case to protect "his illegal occupation". He claimed that he had taken all steps to secure eviction of appellant Moti Lal from the ARCT No. 04/2012 & 05/2012 10 of 22 said portion. According to his version, a civil suit had been filed by him against Moti Lal but the said case, as also civil suit preferred by Moti Lal against him for injunction, had remained pending.
20.The appellant Moti Lal in his evidence, as R2W1, has deposed that the shop in question has been divided into two portions "since last many years" and that "right hand portion towards Mehrauli" (same portion as shown in ABCD in site plan Ex. PW 1/1) has been in his possession "for the last more than 30 years" and, therefore, he has been tenant in that respect in his own rights. He claimed to have been making the payment of rent regularly at the rate of Rs. 30/ per month to the Decree Holder.
21. The above evidence of appellant Moti Lal did not impress the Rent Controller. He noted that Moti Lal had not specified as to when he had become tenant in the said portion of the shop in question. He further noted that during the crossexamination of RW1 (appellant Ram Kumar Verma), suggestion was put on behalf of appellant Moti Lal that the tenancy had been created "jointly" in the name of two brothers. The Rent Controller also noted another suggestion given on behalf of Moti Lal to Ram ARCT No. 04/2012 & 05/2012 11 of 22 Kumar Verma during the crossexamination indicating the tenancy to have commenced in the year 1950. The Rent Controller rejected the contentions of appellant Moti Lal about he being a tenant in his own independent rights noting in this context the fact that Moti Lal had given his age at the time of commencement of his statement on 08.03.2007 to be 70 years, which would render him a minor at the time when the tenancy would have commenced according to his own version.
22. The appellant Moti Lal in his written statement has claimed to be a tenant in the portion in question at the rate of Rs. 30/ per month. As against this, in his evidence, he has claimed to have been paying rent to the landlord at the rate of Rs. 27.50 per month which was "lastly increased" to Rs. 125/ per month. This claim in the course of crossexamination does not jell well with the pleadings in the written statement. Even otherwise, the claim about he having been paying rent regularly to Decree Holder is not supported by any documentary evidence. In the given facts and circumstances, the plea that the landlord would not issue rent receipt does not deserve to be believed. The appellant Moti Lal demolished his own case about regular payment of rent to the landlord by conceding under cross ARCT No. 04/2012 & 05/2012 12 of 22 examination that he had "never paid any rent" to the original petitioner (Pt. Net Ram Sharma) or his family.
23.In above facts and circumstances, I find the learned Rent Controller has rejected the claim of appellant Moti Lal, about he being a tenant in the portion in question in his own independent rights for very sound and valid reasons. The view taken by the learned Rent Controller in this regard cannot be faulted. The contention of appellant Moti Lal about he having ever been inducted as a tenant by the landlord in the said portion, thus, must be rejected.
24. In this scenario, the question that requires to be addressed is as to whether the presence of Moti Lal in portion ABCD as shown in site plan (Ex. PW 1/1) amounts to subletting, assignment or parting with possession by the tenant, within the mischief of Section 14(1)(b) DRC Act.
25.It has been the case of the Decree Holders that the shop in question as depicted in site plan Ex. PW 1/1 (including the portion ABCD) was let out as a whole to appellant Ram Kumar Verma. It is their case that the tenant had partitioned the said shop by erecting a partition wall so as to separately carve out the space ABCD, with each portion being covered by a separate ARCT No. 04/2012 & 05/2012 13 of 22 shutter on the front. It is also their case that the portion ABCD had thereafter been rendered in the possession of appellant Moti Lal to the exclusion of appellant Ram Kumar Verma (the tenant). As noticed earlier, the appellant Ram Kumar Verma in his written statement did not deny that the portion ABCD had come in the exclusive use and occupation of his brother, the appellant Moti Lal. He rather attributed this to Moti Lal having forcibly occupied the said portion trampling upon his lawful rights. In contrast, the appellant Moti Lal in his written statement took the stand that he had been inducted as a tenant in the said portion and had been paying rent directly to the landlord. As observed earlier, his said stand has not been substantiated at the trial.
26.During the crossexamination of PW1, it was suggested to him on behalf of the appellant Moti Lal that the original petitioner had let out two portions separately. Noticeably, the date of letting was not indicated in any manner. The fact that this has been kept vague, the assertion of PW1 that he noticed presence of Moti Lal for the first time in 1997, cannot be brushed aside. His statement that the partition wall came up in 1997 was not refuted.
ARCT No. 04/2012 & 05/2012 14 of 22
27.Though the appellant Ram Kumar Verma appearing as RW1 through his affidavit dated 19.05.2003 reiterated the case of forcible occupation of the portion in question by appellant Moti Lal and further about he having taken all possible steps and adopted due process of law "to evict" Moti Lal there from, certain facts coming out during his crossexamination only re inforce the case of the Decree Holders that Moti Lal came into exclusive possession of portion ABCD at the instance of appellant Ram Kumar himself.
28. During crossexamination, RW1 corroborated the case of Decree Holders when he stated that at the time of he being inducted as a tenant in the shop, it was only one shop with an area of 38 ft x 10 ft. or 10.5 ft. and that the wooden partition was created in 1997. He further conceded that the appellant Moti Lal was carrying on his independent business in portion ABCD which had a separate opening (shutter) which was under
the lock of Moti Lal, to his exclusion. He further conceded that prior to partition being created the shop had only one opening (shutter on the front) and that no permission from the Decree Holders had been taken for creating the said partition or separate openings for the two portions.
ARCT No. 04/2012 & 05/2012 15 of 22
29.Even the appellant Moti Lal appearing as R2W1 has confirmed the above facts by admitting during his crossexamination that two shutters were put up during the pendency of the civil suit involving him on one hand and his brother Ram Kumar Verma on the other and that prior to the said arrangement this shop had only one common shutter/entry. He attributed this arrangement to be the subject matter of mutual consent between him on one hand and Ram Kumar Verma on the other. It is admitted by both the appellants that the Decree Holder has not been a party to the civil suit involving each of them and, therefore, to the consensual arrangement of dividing the shop between themselves.
30.The above facts leave no room for doubt that appellant Ram Kumar Verma and appellant Moti Lal on their mutual understanding had not only created partition of the suit shop but also removed the common shutter and created two separate entrances (shutters) with portion ABCD coming under the lock and key, and exclusive possession, of appellant Moti Lal.
Though the appellant Ram Kumar Verma sought to justify this by claiming it was under the order of Civil Court, he was unable to produce any material indicating he having been compelled ARCT No. 04/2012 & 05/2012 16 of 22 under judicial orders to part with possession of portion ABCD in favour of Moti Lal.
31. The appellant Ram Kumar Verma has relied on Joginder Singh Sodhi Vs. Amar Kaur [MANU/SC/0874/2004] [(2005)1SCC31]. It has been argued that in absence of any proof of any monetary consideration flowing from appellant Moti Lal to appellant Ram Kumar Verma, subletting ought not be inferred.
32.In my considered view, the above argument is wholly misconceived. The mischief of provisions contained in provision under Section 14(1)(b) DRC Act is not restricted to subletting. It also covers assignment of the tenanted premises or parting with its possession in favour of a stranger for each of which the proof of monetary consideration is not necessary.
33.It is pertinent to refer here to two judgments on the issue of sub letting viz. Vishwa Nath and another Vs. Chaman Lal reported as AIR 1975 Delhi 117 and Abdul Hamid and another Vs. Nur Mohd. reported as ILR (1976) II Delhi 250.
34. In Vishwa Nath (supra), the Hon'ble High Court observed as under: ARCT No. 04/2012 & 05/2012 17 of 22 "So long as the lessee retains the legal possession of the whole of the premises he does not commit a breach of law against parting with possession by allowing other people to use the same. A tenant cannot be said to part with the possession of any part of the premises unless his agreement with the licensee wholly ousts him from the legal possession of that part. If there is anything in the nature of a right to concurrent user there is no parting with possession (1931) 1 Ch. D 470 and 1966 Delhi LT 28. Clause (b) of the proviso to S. 14 (1) uses three expressions, namely, 'sublet' 'assign' and 'otherwise parted with possession'. These three expressions deal with different concepts and apply to different circumstances. In subletting, there exists the relationship of landlord and tenant as between the tenant and his subtenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent, and the right to possession as against the tenant in respect of the premises sublet. In assignment the tenant has to divest himself of all the rights that he has a tenant. The expression 'parted with possession' undoubtedly postulates parting with legal possession. Parting with possession means giving possession to persons other than those to whom ARCT No. 04/2012 & 05/2012 18 of 22 possession has been given by lease and "parting with possession" must have been by the tenant. The mere user by other persons is no parting with possession so long as the tenant retain the legal possession himself or, in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession. 1972 RCR 74 (Delhi)". [Emphasis supplied]
35.In Abdul Hamid and another Vs. Nur Mohd. (supra) Hon'ble High Court has observed as under: "The expression "part with possession" has to be understood in the legal sense. The mere fact that the tenant himself was not in physical possession of the tenancy premises for any period of time would not amount to parting with possession, so long as, during his absence, the tenant has a right to return to the premises and be in possession thereof, Divestment or abandonment of the right to possession is necessary in order to invoke the clause 'parting with possession".
[Emphasis supplied]
ARCT No. 04/2012 & 05/2012 19 of 22
36.It is well settled that if the user with a stranger is concurrent, there can be no parting with possession within the meaning of the expression used in Section 14 (1)(b) of the DRC Act. Mere user by other persons also does not constitute parting with possession so long as the tenant retains the legal possession with himself. To bring home a case within the mischief of Section 14 (1)(b) of the DRC Act, there must be divesting by the tenant of the physical possession as also of the right to possession.
37. In the present facts and circumstances, it is clear that there is no privity of contract between the appellant Moti Lal and the Decree Holders. They are not engaged to each other in the relationship of landlordtenant in respect of portion ABCD as shown in site plan Ex. PW 1/1. The entire shop shown in Ex. PW 1/1 including portion ABCD is proved to have been let out by the original petitioner in favour of the appellant Ram Kumar Verma. It is clear that that the appellant Ram Kumar Verma allowed his brother appellant Moti Lal to come in the tenanted premises, initially may be to assist him in the business in the said premises. But, later he created a separate portion (ABCD) and permitted him to be in exclusive possession thereof. This ARCT No. 04/2012 & 05/2012 20 of 22 apparently was done in or around 1997. It is undisputed that no consent of the landlord for such purpose was taken at any stage. This, thus, proves the case of the Decree Holder about the tenant having parted with possession of the portion of the demised premises within the mischief of Section 14(1)(b) DRC Act.
38.The plea of appellant Ram Kumar Verma that a new tenancy was created in 1998 on the rent being revised or that the act of parting with possession earlier indulged by the tenant thereby stood condoned is frivolous. It is clear from his own pleadings/evidence that the Decree Holder had only secured upward revision of rent. That would not render it a case of new contract being created, since the tenancy had continued in terms of arrangement originally put in position.
39.For the foregoing reasons, both the appeals are found devoid of merits. The impugned judgment does not suffer from any error, illegality or impropriety. It is, thus, up held. Both the appeals are dismissed.
40. The reader is directed to place an attested copy of the judgment on the file of ARCT No. 05/2012 titled as Ram Kumar Verma Vs. Rajeev Sharma & anr.
ARCT No. 04/2012 & 05/2012 21 of 22
41. The trial court record be returned with copy of this judgment.
42.File be consigned to Record Room.
Announced in open Court today on this 27th day of August, 2012 (R.K. GAUBA) District Judge (South) & Additional Rent Control Tribunal, Saket, New Delhi.
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