Delhi District Court
Rc No. 2/18 vs Ram Avtar Gupta on 6 November, 2020
IN THE COURT OF SUSHANT CHANGOTRA
RENT CONTROLLER (SOUTH DISTRICT)
SAKET COURTS, NEW DELHI
RC No. 2/18
Ritu Bhandari
W/o Sh. Surender Bhandari
R/o 1828, Funnycide Drive,
Waxhaw, NC28173, USA
Also at:
WC125, Wallington Estate,
DLFPhaseV, Gurgaon, Haryana
............Petitioner
Versus.
Ram Avtar Gupta
S/o Not known
R/o A2/143, Safdarjang
Enclave, New Delhi23.
..........Respondent
ORDER ON APPLICATION FOR LEAVE TO DEFEND
1. The present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 has been filed by the petitioner against the respondent for eviction of respondent from the dwelling house no. A2/143, First Floor, Safdarjung Enclave, New Delhi110048 comprising of originally Ground Floor, First Floor and Second Floor, as shown in red in site plan filed with the petition, on the ground of bonafide requirement of her family for opening a clinic/ dispensary and for residential purpose.
RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 1 of 29
2. The brief facts as stated in the petition are that in the year 1963, the grandmother of the petitioner namely Smt. Ram Pyari Handa purchased the aforementioned property from the President of India by virtue of lease deed dated 24.07.1964. Smt. Ram Pyari Handa expired on 17.03.1988. Her husband had already expired and she was survived by Sh. Krishan Dev Handa (son), Smt. Rama Syal (daughter), Sh. Vishvinder Kumar Handa (son), Sh. Jagdish Charan Handa (son), Smt. Charan Kanta Behl (daughter) and Sh. Subhash Handa (son). Upon death of Smt. Ram Pyari Handa, all the abovementioned legal heirs jointly inherited the aforementioned property and became the joint owners thereof to the extent of their equal share.
3. The petitioner's mother late Smt. Rama Syal had become a coowner of the suit property through inheritance and after her death on 05.04.2006, the petitioner being the only legal heir of Late Smt. Rama Syal, inherited her share in the suit property through a registered will dated 11.07.1997. The petitioner became the cosharer of dwelling house no. A2/143, First Floor, Safdarjung Enclave, New Delhi110048 originally comprising of ground floor, first floor and second floor.
4. The respondents are married to each other and they are residing in the suit property since the year 1990. The respondent no. 2 Smt. Pushpa was known to the mother of petitioner's mother i.e late Smt. Rama Sayal. They had come to Delhi from Punjab and needed shelter. Consequently, during her life the mother of petitioner late Smt. Rama Sayal allowed them to reside in the property RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 2 of 29 temporarily gave two bedrooms, kitchen and hall on the first floor of the suit property to the respondents.
5. In the year 1991, the mother of petitioner went to USA alongwith petitioner, as she was not keeping good health. The mother of petitioner wrote numerous letters dated 02.03.1994, 01.11.1993, 28.12.1991, 01.12.1995, 07.05.1994 to respondents from USA requesting her to vacate the premises as she wanted to reside in the property. The petitioner's mother late Smt. Rama Sayal required the suit property for her own living as she was frequently travelling to and from USA and she did not have any other property in Delhi. The respondents received all the aforesaid letters, but due to malafide intention they never bothered to reply back to the petitioner's mother.
6. In the year 1997, the respondent no. 1 filed a civil suit for permanent and mandatory injunction titled as Ram Avtar Vs. Rama Sayal having suit no. 464/1997 against the mother of petitioner with the intention to grab the suit property and to create a ground that he is a lawful tenant.
7. In the said suit respondent no. 1 alleged that in the year 1990, he was inducted as tenant by the mother of petitioner at the monthly rent of Rs. 1000/, although the respondent was a mere licensee. Vide order dated 20.11.1999, mother of petitioner was proceeded exparte and thereafter an ex parte judgment was passed by the court of Sh. Rajinder Kumar on 20.11.1999 vide which Smt. Rama Sayal was directed not to dispossess the plaintiff without following due process of law.
RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 3 of 29
8. The respondents did not pay rent to mother of petitioner or to petitioner after the passing of judgment dated 20.09.1999. Petitioner also sent legal notice dated 07.02.2015 to the respondent and called upon the respondent to restore the possession of suit property within 15 days, but respondents failed to vacate the property.
9. The petitioner is permanent resident/ green card holder of USA for the last 34 years. The family of petitioner comprises of her husband Mr. Surender Bhandari, her son Mr. Rahul Bhandari, her daughters namely Sonia Bhandari and Arpan Bhandari. The husband of petitioner is doctor in USA and has been working there as a medical practitioner. The son of petitioner is also a doctor and has done his MBBS from Christian Medical College in Ludhiana, Punjab. The daughter of petitioner namely Sonia Bhandari is also a doctor, but is unemployed and is looking for job.
10. The petitioner and her family frequently comes to visit India, but inspite of having a house in Delhi they cannot stay in the suit property as the entire property is occupied by one tenant or the other. Accordingly, she is forced to stay at a house in Gurgaon jointly owned by petitioner and her husband. The petitioner has spent her childhood with her maternal grandmother, grandfather and also her mother at the suit property and therefore she has lots of love and attachment with the suit property. The husband of petitioner is going to retire in the year 2018 and after his retirement he is keen to shift back to India and starts his own multi specialty clinic/ dispensary to serve the people of India. Most of RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 4 of 29 the family members of petitioner are doctors by profession and they all want to come back to India and open a family clinic in the suit property and reside together in the suit property.
11. The entire suit property comprises of ground floor, first floor and second floor being occupied by different tenants. The petitioner had filed the petition for eviction not only against the respondent, but also against the two other tenants in the suit property. The petitioner's son and her husband have even applied to Indian Medical Council for seeking registration to practice. The petitioner does not have any other property in Delhi apart from the suit property, which she has inherited from her late grand mother.
12. The son of petitioner is of marriageable age and the petitioner is looking for a girl for him in Delhi. The petitioner is finding difficulty to get a match for her son as she is not able to provide a proper place of residence to her son, where he can reside and open a clinic to earn his livelihood.
13. The petitioner also needs individual rooms for her children as all the children are grown up and require individual space for them. The petitioner alongwith her family wants to permanently settle in India and open a clinic/ dispensary and the suit premises is the only alternative accommodation available to her in Delhi. The petitioner cannot afford to take some other property on rent in Delhi as the rental value in the Delhi is very high. Therefore, the suit property is the best alternative accommodation available to her and her family. Hence, the present petition.
RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 5 of 29
14. Notice of eviction petition was sent to the respondent in the prescribed format which was duly served on the respondent. The respondent filed application for leave to defend along with affidavit.
15. Respondents in their application for leave to defend pleaded that the petitioner has no locus standi to file the present petition against the respondent. Petitioner herein is neither the owner of the premises nor the landlord of the respondent. Late Ram Pyari Handa was the sole and exclusive owner the entire property bearing no. A2/143, Safdarjung Enclave, New Delhi110048, by virtue of Lease deed dated 24.7.1964. Late Smt. Ram Pyari Handa passed away intestate on 17.3.1988 leaving behind the legal heirs i.e. Krishan Dev Handa (Son), Rama Sayal (Daughter), Vishvinder Kumar Handa (Son), Jagdish Charan Handa (Son), Charan Kanta Behl (Daughter) and Subhash Handa (Son).
16. The petitioner herein is the daughter of above named Late Rama Syal and maternal granddaughter of late Ram Pyari Handa. The remaining legal heirs of Late Ram Pyari Handa have not been impleaded as parties in the present petition. The petitioner has not filed any no objection or relinquishment deed executed in her favour by the other legal heirs of Late Ram Pyari Handa. The petitioner has placed on record an alleged Will dated 11.7.1997 of Rama Syal, according to which Late Rama Syal was the owner of only 1/6th share in property no. A2/143, Safdarjung Enclave, New Delhi110048 and as such the petitioner cannot seek eviction of the respondent from the said property.
17. The present petition has been filed against a dead person namely RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 6 of 29 Pushpa Rani Gupta, who had passed away on 19.10.2012. On 2.5.2018, the court had abated the present petition against her, however, the petitioner has not taken any step to implead her legal heirs namely Rohit Gupta, Mohit Gupta Son and Radhika Singla.
18. The respondent is in settled and uninterrupted possession of the property in question since 1990. It is submitted that in the year 1997, the respondent filed a suit for permanent injunction bearing Suit No.464/1997 for restrain the mother of the petitioner namely Rama Syal from dispossessing him from the property in question, wherein Rama Syal filed her written statement and denied the relationship of landlord and tenant between her and the respondent herein. Subsequently, the aforesaid suit was decreed in favour of the respondent vide judgment and decree dated 20.11.1999.
19. The mother of the petitioner during her lifetime did not take any step or initiate any proceedings against the respondent. As such the respondent cannot be evicted from the premises in question on account of his interrupted and settled possession over the premises in question since 1990. The petitioner has more than sufficient accommodation with her and there is absolutely no necessity/requirement for any other or additional accommodation.
20. The petitioner is the owner of property bearing no. D2007, Palam Vihar, Gurugram, Haryana admeasuring 520 sq yards. The petitioner and her family members own and possess various other properties. The petitioner has concealed material facts from this Hon'ble Court as the petitioner is a permanent RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 7 of 29 resident /Green Card Holder of USA, therefore, there is no likelihood of her settling in India. The present petition has been filed with ulterior motive and malafide intention in order to sell the property in question for her monetary gain. The petitioner has not initiated eviction proceedings against the other occupants of the building. Hence, it is pleaded that petitioner does not have bonafide need or necessity as pleaded. Therefore, the leave to defend may be granted.
21. The petitioner filed reply and counter affidavit to the application for leave to defend. The petitioner denied the averments of application for leave to defend and reiterated the averments of petition. She prayed that application for leave to defend may be dismissed.
22. I have heard Ld. Counsels for the parties at length and have gone through the record very carefully.
23. Before proceeding further it would be worthwhile to state that Chapter IIIA Of Delhi Rent Control Act deals with summary trial of certain applications expressly stating that every application by a landlord for recovery of possession on the ground specified in clause (e) of the proviso to sub section (1) of Section 14 of the Act, or under Section 14A or 14B or 14C or 14D shall be dealt with in accordance with the special provisions prescribed in Section 25B of the Act. The provisions in Chap. IIIA confer a real, effective and immediate right to obtain possession by confining the trial only to such cases where the tenant has such a defence as would disentitle the landlord from obtaining an order for eviction under s.l4(1)(e) or under s. 14A. Chap. IIIA seeks RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 8 of 29 to strike a balance between the competing needs of a landlord and a tenant and has therefore provided that the tenant shall have a right to apply for leave to contest. As per the broad scheme of this Chapter a tenant is precluded from contesting an application filed for eviction on the grounds mentioned in the aforementioned provisions unless he obtains leave from the Controller to contest the eviction petition. In default of obtaining leave to defend or leave is refused to him an order of eviction follows. It appears recourse to summary trial is adopted having due regard to nature of the grounds on which the eviction is sought with a view to avoid delay so that the landlord should not be deprived or denied of his right to immediate possession of premises for his bona fide use. The defence must also be bonafide and if true, must result in the dismissal of landlord's application. Defences of negative character which are intended to put the landlord to proof or are vague, or are raised mala fide only to gain time and protract the proceedings, are not of the kind which will entitle the tenant to the grant of leave. The Controller cannot set down the application for hearing without making an order in terms of subs. (5) of s. 25B. The trial must be confined only to such grounds as would disentitle the landlord to any relief.
24. A landlord, who bonafidely requires a premises for his residence and occupation should not suffer for long waiting for eviction of a tenant. At the same time, a tenant cannot be thrown out from a premises summarily even though prima facie he is able to say that the claim of the landlord is not bona fide or untenable and as such not entitled to obtain an order of eviction. Hence, the approach has to be cautious and judicious in granting or refusing leave to RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 9 of 29 defend to a tenant to contest an eviction petition within the broad scheme of Chapter IIIA and in particular having regard to the clear terms and language of Section 25B(5) of DRC Act.
25. Now coming to the merits of the pleas raised in the application for leave to defend, at the outset it is necessary to note that in order to succeed in the cases U/Sec. 14(1)(e) of D.R.C. Act, the petitioner is required to prove the following ingredients:
(a) Ownership in respect of tenanted premises;
(b) Relationship of landlord and tenant between the parties;
(c) Petitioner bonafidely requires the tenanted premises;
(d) Petitioner does not have any other alternative accommodation with him/her.
OWNERSHIP AND RELATIONSHIP OF LANDLORD AND TENANT:
26. The respondent has disputed the title of petitioner and has also denied the relationship of landlord and tenant inter se them. In Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RCR No. 136/12, it has been held that, "It is settled law that in the context of Delhi Rent Control Act, what appears to be the meaning of the term 'owner' is that visavis the tenant i.e. the owner should be something more than the tenant." The position in law is that "The ownership" of the landlord for the purpose of maintaining a petition U/Sec. 14(1)(e) of the D.R.C. Act is not required to be a absolute ownership of the property and it is sufficient if the landlord is a person who is collecting the rent RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 10 of 29 on his own behalf. The imperfectness of the title of the premises can neither stand in the way of an eviction petition U/Sec. 14(1)(e) of the Act, nor can the tenant be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord."
27. The standard of proof required for establishing title in the eviction petition varies from the standard of proof required in the civil suit. In Rajender Kr. Sharma & Ors. Vs. Leela Wati & Ors. 155 (2008) DLT 383; it was held "For the purpose of Sec. 14(1)(e) of the D.R.C. Act, the landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant." Further, the Hon'ble Supreme Court in Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors. AIR 1987 SC 2028 has held that,"For the purpose of Sec. 14(1)(e) of the Act, ownership is not to be understood as absolute ownership but only a title better than the tenant. So what is to be seen is whether on the basis of aforesaid facts it can be said that the petitioner has any title to the property better than the respondent."
28. Therefore, the parameters for adjudicating the defence of lack of title of the petitioner has to be adjudicated on the touchstone of the law as referred above.
29. The admitted facts of the case are that Smt. Ram Pyari Handa was the owner of the suit premises i.e. A2/143, Safdarjang Enclave, New Delhi and RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 11 of 29 she passed away on 17.03.1988. It is also admitted that Smt. Ram Pyari Handa was survived by ClassI legal heirs i.e. Sh. Krishan Dev Handa (son), Smt. Rama Syal (daughter), Sh. Vishvinder Kumar Handa (son), Sh. Jagdish Charan Handa (son), Smt. Charan Kanta Behl (daughter) and Sh. Subhash Handa (son). It is also admitted that the petitioner herein is the daughter of Smt. Rama Sayal D/o Smt. Ram Pyari Handa, who has also died.
30. The aforementioned admitted facts clearly show that the respondent has admitted that Smt. Rama Sayal was the cosharer of the suit premises and after her death the petitioner herein is also a cosharer. The defence is that the petitioner cannot file the eviction petition by herself without joining the other cosharers.
31. In Sri Ram Pasricha V. Jagannath & Ors (1976) 4 SCC 184, it was held that, "A coowner can succeed in the petition for eviction without impleading all the other coowners. It is not necessary that landlord should be a absolute owner. Since coowner owns every part of the composite property alongwith others, therefore, it cannot be said that he is only a part owner or a fractional owner." It has also been held in a catena of judgments of the Hon'ble Supreme Court and more specifically in Kanta Goel vs. D.P. Pathak, 1979 (1) RCR (Rent) 485; (1977) 2 Supreme Court cases 814 and Pal Singh vs. Sunder Singh 1989 (2) RCR (Rent) 331; : (1989) 1 Supreme Court cases 444; that "one of the coowners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 12 of 29 maintainability of the suit on the ground that the other coowners were not joined as parties to the suit. When several owners own the property forming the subject matter of the eviction proceedings every coowner owns every part and every bit of the joint property along with others and it can not be said that he is only a partowner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other coowners if such other coowners do not object...".
32. The petitioner has averred that she is the sole legal heir of deceased Smt. Rama Syal and she also set up a case of will executed in her favour by deceased Smt. Rama Syal. The respondent has not pleaded any other legal heir of late Smt. Rama Syal nor he has been able to prima facie create any doubt vis avis the execution of aforementioned will. Thus, a petition for eviction is maintainable at the instance of a cosharer.
33. As regards the argument that the petitioner has not obtained prior no objection from the remaining cosharers is concerned, in M/s Indian Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors., AIR 2004 1321, it was held that,"The consent of other coowners is assumed to be taken unless it is shown that the other coowners were not agreeable to the ejectment of the tenant and suit/petition for their eviction was filed despite their disagreement." The respondent has not been able to show that the remaining cosharers are not agreeable to the ejectment.
RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 13 of 29
34. On the contrary, the petitioner has filed photocopies of power of attorneys executed by Sh. Krishan Dev Handa, Chander Kanta Behal, Sh. Subhash Chander Handa and Sh. Vishvender Kumar Handa in favour of the 5th legal heir of deceased Ram Pyari Handa i.e. Sh. Jagdish Chander Handa. The perusal of said power of attorneys show that all these attorneys relate to the suit premises, wherein the power to further delegate the said powers to be executed by Sh. Jagdish Chander Handa was also given. The petitioner has also filed a copy of power of attorney executed by Sh. Jagdish Chander Handa in her favour, wherein he had authorized her to seek eviction of the tenants of the suit premises.
35. The aforementioned documents not only show that the petitioner has the authority to institute the petition on behalf of remaining cosharers, but it also show that there is no dispute interse the cosharers with regard to filing of present petition.
36. In the application for leave to defend, the respondent has set up a plea of adverse possession. It is admitted in the application for leave to defend as well as the petition that the respondent herein had filed a civil suit for permanent injunction against the mother of petitioner namely Smt. Rama Syal for restraining her from forcibly dispossessing him from the suit premises. It is also admitted that the said suit was decreed in favour of respondent herein vide ex parte judgment dated 20.11.1999. The perusal of copy of said judgment dated 20.11.1999 shows that respondent herein had specifically pleaded that he is a RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 14 of 29 tenant of the suit premises and he was inducted as tenant by Smt. Rama Syal i.e. predecessor in interest of petitioner herein at the rent of Rs. 1000/ per month.
37. The petitioner has filed copy of entire judicial record of said suit, which further shows that respondent herein had filed the copy of rent receipts purportedly executed by Smt. Rama Syal in favour of respondent herein. Therefore, in the said case the respondent had admitted himself to be the tenant in the suit premises under the landladyship of Smt. Rama Syal. Thus, there is categorical admission on the part of the respondent herein qua the existence of relationship of landlord and tenant between him and late Smt Rama Syal. In "Delhi Tourism & Transport Development Corporation Ltd Vs Leman International Pvt. Ltd." 86 (2000) DLT 53 the Hon'ble High Court of Delhi observed that, "It is now well established that admissions are not restricted to pleadings. More often than not, contents of the plaint are denied in order to delay proceedings and procrastinate the incidence of liability. Admission can, therefore, be justly and soundly drawn even from attending circumstances, such as pleadings in other suits or proceedings, or documents exchanged between the parties. Infact, in my opinion, documents constitute the best source of admissions of facts. In the present case, admittedly a licence deed was executed by the parties, and the Court need not travel any further. It is bound to treat the contents of such a document as admissions between the parties, and give effect to its contents at the very earliest. Failure to do so would tantamount to encouraging dishonest pleadings. All the averments put forward by the plaintiff are predictated and are sustainable merely from a reading of this deed itself.
RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 15 of 29
38. As a result, the respondent can only continue to remain tenant under her successors in interest.
39. Moreover, the aforementioned exparte judgment dated 20.11.1999 was between the same parties i.e. respondent herein and the predecessor in interest of petitioner. It related to the same property and the subject matter in the said suit was to the effect as to whether the respondent herein is a tenant or not? The said issue is directly and substantially in issue in this case as well. The court had passed the said decree on the assertion of respondent herein that he is a tenant in the suit premises under the landladyship of Smt. Rama Syal. Thus, the court had passed the judgment on the basis of the aforementioned conclusion i.e about the status of respondent herein as the tenant in the property in dispute.
40. In Sajjandanasthin Sayed Vs Musa Dadabhai Ummer & ors AIR 2000 SC 1238, the Hon'ble Supreme Court held that, "....The test to determine whether an issue was directly and substantially in issue is earlier proceedings or collaterally or incidentally, is that if the issue was 'necessary' be decided for adjudicating on the principal issue and was decided, it would have to be treated as 'directly and substantially' in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case. One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue. It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 16 of 29 significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally must be determined on the facts of each case. A material test to be applied is whether the Court considers the adjudication of the issue material and essential for its decision."
41. Hence, the aforementioned finding qua the respondent herein being the tenant under Smt Rama Syal actually operates as resjudicata upon the respondent herein.
42. It is further necessary to note that respondent in his application for leave to defend has relied upon the aforementioned exparte judgment dated 20.11.1999, wherein he admitted himself to be the tenant and even in the present application for leave to defend, he has not pleaded specifically that he was not inducted as tenant by late Smt. Rama Syal.
43. In the aforementioned circumstances, respondent had to specifically plead the month or year after 20.11.1999 when his possession became adverse and hostile towards the true owner. In T. Anjanappa v. Somalingappa (SC) 2006(2) RCR (Rent) 593 which are reproduced as under;
"12. The concept of adverse possession contemplates a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 17 of 29 firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that this possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse. It is on the basis of this principle that it has been laid down that since the possession of one coowner can be referred to his status as coowner, it cannot be considered adverse to other co owner.(See Vidya Devi v. Prem Prakash and Ors., 1995(3) RRR 65(SC):
1995(4) SCC 496).
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to he adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. Trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.
RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 18 of 29
15. "Adverse possession "means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb v. B.B. Patil, 1995(2) RRR 370 : AIR 1995SC 895 at 902).
16. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of another does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.
17. An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 19 of 29 entitled to possess it, and without anything to show that he possesses it otherwise than an owner(that is, with the intention of excluding all persons from it, including the rightful owner), he is in adverse possession of it. Thus, if A is in possession of a field of B's, he is in adverse possession of it unless there is something to show that his possession is consistent with a recognition of B's title. (See Ward v. Carttar (1866) LR 1 Eq. 29). adverse possession is of two kinds, according as ti was adverse from the beginning, or has become so subsequently. Thus, if a mere trespasser takes possession of A's property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A's bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position.
Adverse possession not only entitled the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property and this although the true owner is ignorant of the adverse possessor being in occupation. (See Rains v. Buxion, 1880(14) Ch D 537).
22. It is well recognized proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner................"
44. The application for leave to defend does not disclose any of necessary elements with respect to his defence of adverse possession.
RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 20 of 29
45. The ld. Counsel for respondent argued that in the petition itself the petitioner is sticking to the plea that respondent was a licensee and not a tenant, therefore, the petitioner cannot set up contradictory pleas and thereby seek eviction.
46. In this context, it is necessary to note that it is a settled proposition of law that pleadings have to be read as a whole. In Udhav Singh Vs. Madhav Rao Scindia (1977) 1 SCC 511, it has been held that, a pleading has to be read as a whole to ascertain its true import. It is not permissible to call out a sentence or a passage and to read it out of the context, in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention' of the party concerned is to be gathered, primarily, from the tenor and terms of his pleading taken as a whole.
47. The complete perusal of petition shows that the petitioner has specially pleaded that respondent was inducted as tenant by her mother at the rent of Rs. 1000/ per month. She has given the detailed account of the previous litigation specifying that her mother had taken a stand that respondent herein was not a tenant, but a licensee and since the said defence was declined vide ex parte judgment dated 20.11.1999, therefore, the petitioner has sought eviction under the DRC Act.
48. The aforementioned pleadings do not show any contradiction. Perusal of entire pleadings show that the petitioner narrated the facts of the RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 21 of 29 previous case. Though perusal of petition in parts may give impression that the petitioner is still alleging the respondent to be licensee, but in my considered opinion the complete perusal of petition does not leave any scope for doubt that the case of petitioner is to the extent that respondent is a tenant in the demise premises at the rent of Rs. 1000/ per month.
49. Thus, in view of the aforementioned discussion, it has to be concluded that no triable issue is made out regarding the existsance relationship of landlord and tenant between the petitioner and respondent.
BONAFIDE REQUIREMENT
50. It is admitted fact that petitioner and her husband are the residents of United States of America. The petitioner has set up a case that her family members including her husband and her children are doctors by profession and all of them want to start a multi specialty clinic/ dispensary with modern facilities including belts for the patients and therefore she requires space for setting up such a clinic/ dispensary alongwith a place of residence for herself and her family members.
51. The petitioner has also pleaded that her husband and her son had applied to Indian Medical Council for seeking registration to practice. She has annexed copies of online registration forms submitted with Indian Medical Council as well as copies of degrees of MBBS of her husband namely Surender Bhandari, her daughter Soniya Bhandari and her son namely Sh. Rahul Bhandari. She has also annexed copy of registration of her son Rahul Bhandari RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 22 of 29 with Punjab Medical Council.
52. The respondent has taken a bald plea that the need of petitioner is not bonafide. The respondent has not denied the fact that family members of petitioner are doctors nor he has been able to bring the authenticity of the documents relied upon by petitioner under the cloud of suspicion.
53. It is settled proposition of law that landlord is best judge of his needs. In M/s John Impex Pvt. Ltd. Vs. Dr. Surender Singh & Ors. 135 (2006) DLT 265), it has been held that, "The landlord is the best judge of his requirements and a tenant cannot dictate the terms on which the landlord should live."
54. Further in Suraj Khemka Vs. Indu Sharma 79 (1999) DLT 120; also the landlord had been a resident abroad and had filed the eviction petition pleading requirement for the reason of intent to shift to India. The Hon'ble High Court of Delhi while affirming the order of the Controller rejecting the application of the tenant for leave to defend, held "no Court can compel a person to stay in a house of his relative or in a hotel and because the said person is staying abroad, he has no right to stay in his own premises. It was held that if a person is residing abroad and owns a house/flat in Delhi and wants to spend a few weeks or a few months in Delhi, then he/she must be allowed to stay in his/her own house." Similarly, in T.D. Dhingra Vs. Pritam Rai Khanna 48 (1992) DLT 208 ; it was held that there is no provision of law whereby an Indian who had acquired foreign citizenship is disentitled to enjoy RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 23 of 29 residence in his own property in India when he chooses to return to India. Also, in S.P. Kapoor Vs. Kamal Mahavir Prasad Murarka 97 (2002) DLT 997, the Hon'ble High Court of Delhi had held that if a landlord/owner is permanently settled outside Delhi but his visits to Delhi are frequent, his need, even for temporary stay in is own premises, has to be viewed as a bonafide need.
55. In the present case, even if, it is believed that the petitioner is an NRI, that in itself is not sufficient to conclude that the requirement of the petitioner is not bonafide. Also, it is not the case of the respondent that the petitioner is not staying in India or does not need the premises for his stay while in India.
56. As far as the plea that the respondents do not have any other accommodation is concerned, it is a settled proposition of law that the hardship of the tenant is not to be considered, whereas hardship of the petitioner/Landlord alone is to be considered by the Court in an eviction petition. It has been held by the Hon'ble Supreme Court of India in Sushila Vs. IInd Additional District Judge, Banda 2003 (2) SCC 28, that long possession of the tenant or his hardships have no relevance in deciding the bonafide requirement of the landlord. If the tenanted premises is the only source of living of the tenant, even then the requirements of the petitioner/landlord are to be considered as paramount. As such, it is again not a triable issue.
57. Thus, no triable issue is disclosed qua the bonafide need and necessity of petitioner visàvis the demised premises.
RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 24 of 29 ALTERNATIVE ACCOMMODATION
58. The first defence of respondent is that petitioner has not disclosed the details of other properties. In the application for leave to defend, the respondent has pleaded that petitioner is owner of property bearing no. D2007, Palam Vihar Village, Gurgaon. The petitioner and her family members also own and possess various other properties which have not been disclosed.
59. In Kishori Lal Vs. Ram Saran, Lawsuit (Delhi) 2649, it has been held that, "The ld. Counsel for the petitioner finally sought to argue that the respondent/ landlord should have given details of all the godowns with him, however, I do not agree with this argument because in an eviction petition the landlord has only to state that how he has no other alternative suitable accommodation and he need not give details of each and every property belonging to him. Whether or not a particular property as stated in the leave to defend application is an alternative accommodation will and can be dealt with by the landlord while filing reply to the leave to defend application which was done in this case and as noted by the Additional Rent Controller, the petitioner/ tenant did not file any rejoinder to contest his position."
60. The respondent has not given the details of any of the properties owned and possessed by the petitioner in Delhi, therefore, the assertion that the petitioner has other properties in Delhi is merely a bald assertion. It has been observed in the judgment titled as "Rajender Kumar Sharma & Ors. Vs. Leela Wati & Ors." [155 (2008) DLT 383] by the Hon'ble Delhi High Court RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 25 of 29 that only those averments in the affidavit are to be considered by the Rent Controller which have some substance in it and are supported by some material. Mere assertions made by a tenant in respect of landlord's ownership of other buildings and in respect of alternate accommodation are not to be considered sufficient for grant of leave to defend.
61. As regards the assertion that the petitioner has other property which is situated in Gurgaon is concerned, the case of petitioner is that it is a residential property. The petitioner has alleged that property situated in Safdarjang Enclave is more suitable for running of the clinic.
62. It is settled law that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit property wherefrom the landlord is seeking eviction. Further, it has been held in a catena of judgments that the landlord is the best judge of his requirements and a tenant can not dictate the terms on which the landlord should live. (M/s John Impex Pvt. Ltd. Vs. Dr. Surender Singh & Ors. 135 (2006) DLT 265).
63. Moreover, in Adarsh Electricals & Ors. vs. Dinesh Dayal 173 (2010) DLT 518, it has been held that, "It is settled law that, "the question of accommodation, actually in possession of the landlord, being 'reasonably suitable' is to be judged solely in the context of physical sufficiency of the accommodation and that the Court may hold that accommodation is insufficient having regard to various circumstances, such as, the social status of the family RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 26 of 29 or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale. The law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant."
64. It has been argued that there are other portions in the suit premises which are in possession of other tenants which are sufficient for the petitioner. The ld. counsel for the petitioner had argued that the petitioner has also filed eviction petitions against them, but the premises in dispute is better suited for the petitioner.
65. It is settled law that in a property or accommodation over which landlord has no legal control or legal right to occupy can not be included as accommodation available with such landlord for ascertaining his requirement. Reliance is placed upon the case of Jitender Kumar Jain & Ors. vs. M/s J.K. Horticultural Produce Marketing & Processing Cor. Ltd. 110 (2004) DLT 193.
66. Moreover, in Anand Prakash vs. Ram Murti Devi decided on 03.05.2010, it has been held that "It is the discretion of the landlord to determine his needs when asking for vacation of the suit premises, subject to the need being bonafide". Further, in Sudesh Kumar Soni and Anr. vs. Prabha RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 27 of 29 Khanna and Anr. 153 (2008) DLT 652, it was observed that it is not for the tenant to dictate the terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. Suitability has to be seen as per the convenience of the landlord and his family members. In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary [AIR 2000 S.C.534] the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Similar observations have been made by the Hon'ble Delhi High Court in Shri Gurucharan Lal Kumar vs. Srimati Satya Wati [2013(2) RCR (Rent) 120]; Surinder Singh vs. Jasbir Singh [172 (2010) DLT 611].
67. Therefore, no triable issue is made out regarding the alternative accommodation available with the petitioner.
CONCLUSION
68. In view of the abovementioned discussion, it has to be concluded that the respondent has raised bald pleas and has not been able to raise any triable issue. It is well settled that leave to defend is granted to the tenant in case any triable issue is raised by him, which can be adjudicated by consideration of additional evidence. In Rajender Kumar Sharma Vs. Leelawati, 155 (2008) DLT 383, the Hon'ble Delhi High Court held that, "Only those averments in the affidavit are to be considered by the rent controller which have some substance in it and are supported by some material." Since, the respondent has failed to RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 28 of 29 raise any triable issues, therefore, the application for leave to defend is dismissed.
69. As a consequence thereof, an eviction order is passed U/s. 14 (1)
(e) of DRC Act in favour of petitioner and against the respondent in respect of the premises i.e. A2/143, First Floor, Safdarjung Enclave, New Delhi110048 comprising of originally Ground Floor, First Floor and Second Floor, as shown in red in site plan , as shown in colour red in site plan filed with the petition which is now marked as MarkP1 (put by the court for the purpose of identification).
70. However, in light of Section 14 (7) DRC Act, the aforesaid eviction order shall not be executable for a period of six months from the date of this order. File be consigned to the record room after due compliance.
Digitally signed by SUSHANT SUSHANT CHANGOTRA CHANGOTRA Date:
2020.11.06 14:51:50 +0530 (Announced in the open court) (SUSHANT CHANGOTRA) 6th November, 2020 RENT CONTROLLER (SOUTH) SAKET COURTS, NEW DELHI RC no. 2/18 Ritu Bhandari Vs. Ram Avtar Gupta 29 of 29