Delhi District Court
Smt. Amarjeet Kaur vs Sh. G.S. Lamba on 9 January, 2019
IN THE COURT OF AJAY NAGAR, COMMERCIAL CIVIL JUDGE-
CUM-ADDITIONAL RENT CONTROLLER (WEST), TIS HAZARI
COURTS, DELHI.
ARC No-165/2017
1. Smt. Amarjeet Kaur
W/o Late Sh. Lakhvir Singh
R/o D-572, Tagore Garden Extension
New Delhi-110027.
2. Sh. Jasvinder Singh
S/o Late Sh. Lakhvir Singh
R/o D-572, Tagore Garden Extension
New Delhi-110027.
3. Sh. Varinder Singh
S/o Late Sh. Lakhvir Singh
R/o 8/7, Second Floor,
Ashok Nagar,
New Delhi.
4. Smt. Varinder Kaur
W/o Sh. Ravinder Singh
R/o WZ-47/1, Beriwala Bagh,
Hari Nagar,
New Delhi.
5. Sh. Gurcharan Singh
S/o Late Sh. Lakhvir Singh
R/o D-572, Tagore Garden Extension
New Delhi-110027. ...Petitioners
VERSUS
Sh. G.S. Lamba
S/o Sh. Avtar Singh
ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 1 /17
R/o D-572, Tagore Garden Extn.
New Delhi-110027
Also at:
A-4/20, Paschim Vihar,
New Delhi. ..Respondent
Date of filing : 16.07.2015
Date of Judgment : 09.01.2019
JUDGMENT
1. Present petition U/Sec. 14 (1) (e) of Delhi Rent Control Act, 1958 (hereinafter referred to as "DRC Act") has been filed by the petitioners for eviction of the respondent from the premises i.e. one office-cum-shop situated in the front portion of the property bearing No. D-572, Tagore Garden Extension, New Delhi-110027, as shown in red in the site plan attached with the petition (hereinafter referred to as 'tenanted premises') in favour of the petitioners and against the respondent.
2. It is averred by the petitioners that the tenanted premises were owned by late Sh. Lakhbir Singh. S/O Sh. Gurdial Singh, who died intestate and upon death of Sh. Lakhbir Singh, the property devolved upon the petitioners being the legal heirs by operation of law. That the petitoner no. 1 is widow, petitioners no. 2 & 3 are sons, petitioners no. 4 is duaghter and petitioners no. 5 is son of late Sh. Lakhbir Singh. That the petitioners have become co-owners/ co-landlords of the suit property. That the respondent is the tenant under the petitioners. That the petitioners no. 5 is ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 2 /17 doing the business of selling clothes by putting clothes on the rear carrier of the bi-cycle and the tenanted premises are required bonafidely for occupation as shop for running the business of selling clothes by the petitioners no. 5 Sh. Gurcharan Singh. That the petitioners have no other reasonably suitable commercial accommodation for running the shop by petitioners no.5. That the second shop in the suit property is on the side lane in occupation of another tenant Sh. Pappu shown in yellow colour in the site plan. Lastly, it is prayed that an eviction order be passed in favour of petitioners and against the respondent.
3. Notice of the eviction petition was sent to the respondent. In response to which, respondent filed his leave to defend application which was ultimately granted to the respondent with an opportunity to file written statement.
4. In his Written Statement, it is inter-alia contended by the respondent that the petitioners are neither landlords nor the owners of the tenanted premises and they have not placed on record any rent receipts or any other document to show that respondent is a tenant in the tenanted premises. That the respondent has been in possession of the tenanted premises since 1984 without any hinderence or obstructions by Sh. Lakhbir Singh or any of the petitioners. That Father of the respondent late Sh. Avtar Singh had taken possession of the tenanted premises from Sh. Lakhbir Singh upon making full and final payment of Rs. 25,000/- against the purchase of the tenanted premises and since then, the respondent has been running his office in the tenanted premises. That the respondent or the father of the respondent were never tenants in the tenanted premises and thus, never ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 3 /17 paid any rent either to late Sh. Lakhbir Singh or to any of the petitioners. That the affidavit duly signed by Sh. Lakhbir Singh at the time of handing over the possession is placed on record. That no document has been placed on record by the petitioners in respect of devolution of the tenanted premises upon them. That no permission U/Sec. 19 of D.R.C. Act has been sought by the petitioners. That even if it is assumed that the petitioners are the landlords of the tenanted premises, the law of adverse possession will apply in the present case as the respondent has been in possession since 1984 uninterruptly and without any obstructions.
That the requirement of the petitioners is not bonafide as they are in possession of second shop in the suit property and further the petitioners were in the possession of third shop in the suit property but have leased it out very recently to one tenant Sh. Pappu. That petitioners no. 5 is also working in another shop. That petitioners no. 1 already has alternative accommodation for petitioners no. 5 to start the shop. Lastly, it is prayed that the eviction petition of the petitioners may be dismissed with cost.
5. Replication was filed by the petitioners to the written statement of the respnodent wherein the petitioners have refuted the stand of the respondent and reaffirmed their orignal stand as well as the petitioners have clarified the stand taken by him. In their replication, the petitioners have reasserted their bonafide requirement of the tenanted premises.
6. Thereafter, after completion of pleadings, matter was fixed for petitioners Evidence/P.E. petitioners no. 1 examined herself and another witness from SDMC/MCD. petitioners relied upon the site plan Ex. PW-1/1, PW-1/2 (13 pages colly.) Transfer of property documents.
ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 4 /17Thereafter, petitioners' evidence was closed.
7. Evidence was also led by the respondent. Respondent examined himself as RW-1 being only witness. RW-1 relied upon various documents i.e. Affidavit regarding selling and handing over the possession of the suit property Ex. PW-1/R-1 (OSR), PW-1/R-2 (OSR) document showing selling of suit property-cum-receipt. Respondent/RW-1 was cross examined at length by Ld. Counsel for petitioners. Thereafter, Respondent's evidence was closed and the matter was fixed for final arguments.
8. I have heard the arguments at length advanced by Ld. Counsels for both the parties and gone through the entire record, written submissions and case law relied upon.
9. It is expedient to reproduce the Section 14 (1)(e) of DRC Act which is as under:
"Section-14. Protection of tenant against eviction- (1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by court or any controller in favour of the landlord against a tenant:
Provided that the controller may, on an application made to him in the prescribed manner, make an order for recovery of possession of the premises on one or more of the following grounds only, namely:-
"That the premises are required bonafide by the ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 5 /17 landlord for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonably suitable accommodation."
As such, followings are the ingredients of Section 14 (1)(e) of D.R.C. Act:-
(i)There should be relationship of landlord and tenant between the petitioners and respondent.
(ii)Landlord should be the owner of the tenanted premises.
(iii)That the premises are required bonafide by the landlord for himself/herself or for any member of his/her family dependent upon him/her.
(iv)Landlord should not have other reasonable suitable accommodation.
10. Let us discuss the ingredients of Sec. 14(1)(e) of D.R.C. Act:-
(i) & (ii). LANDLORDSHIP/OWNERSHIP:-
11. Perusal of record shows that the respondent has claimed that the petitioners are neither landlords nor the owners of the tenanted premises and they have not placed on record any rent receipts or any other document to show that respondent is a tenant in the tenanted premises.
ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 6 /17Furthermore, the respondent has claimed that he has never been tenant in the tenanted premises and he has been in possession of the tenanted premises since 1984 uninterrupted.
Perusal of the record shows that the petitioners have placed on record various documents Ex.PW1/2(colly) in respect of ownership of the tenanted premises in favour of the predecessor Sh. Lakhbir singh S/o Sh. Gurdial Singh.
12. I have carefully and minutely gone through the record which shows that the petitioners have been able to prove the landlordship and ownership of the suit property where the tenanted premises is situated.
On the other hand, the respondent has placed on record documents Ex. PW-1/R-1 (OSR) and PW-1/R-2 (OSR) to prove the ownership of the respondent.
I have perused the documents as well as the testimonies of the witnesses on record.
RW-1 in his evidence deposed that:-
"It is correct that on the first floor of the suit property, the petitioners and her family members are residing. I do not know as to who is in occupation as tenant in the shop adjacent to the shop under my occupation. All the family members including Sh. Gurcharan Singh, his wife and children are residing on the ground floor in the portion next to the shop which is adjacent to the premises under my occupation. It is correct that one of the petitioners Sh. Gurcharan Singh is married and is having his wife and children....
I have not filed any site plan in the present petition. I do not know as to what "Locus- standi"
means. It is correct that Sh. Lakhbir Singh was owner of the property i.e. D-572, Tagore Garden Extension, New Delhi-110027 except the shop under ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 7 /17 my occupation which is part of the said property. It is wrong to suggest that Late Sh. Lakhbir Singh never sold the premises in question either to my father Late Sh. Avtar Singh or to me. It is wrong to suggest that since day one, I am in physical possession of the premises in question. (Vol. My father was earlier in occupation and possession of the premises in question). My father took the possession of the property on 14.05.1984 on the day of my birth day and I came into possession of the premises in question after one and half year. It is wrong to suggest that my father never occupied the premises in question or that since day one I have been in possession of the premises in question.
Sh. Lakhbir Singh had got prepared Ex. PW-
1/R-1 and PW-1/R-2 since he was working at Chawri Bazar....."
Perusal of testimony of RW-1 shows that he himself admitted during his cross examination that Sh. Lakhbir Singh is the owner of the suit property but not the tenanted premises. As such, the respondent has admitted the ownership of Sh. Lakhbir Singh of the entire suit property except the tenanted premises under his occupation. He has also claimed that his father took the possession of the property on 14.05.1984 on the day of his birthday and he came into the possession of the tenanted premises after one and half year.
Perusal of record shows that the respondent has claimed that he has never been the tenant in the tenanted premises and he is owner of the tenanted premises since 1984.
I have also carefully gone through the testimony of PW-2 Sh. Anil Kumar from SDMC/MCD who brought the summoned record i.e. Assessment Survey conducted by the MCD which shows that Sh. G.S. Lamba/tenant is a tenant on the ground floor in respect of tenanted ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 8 /17 premises and testimony of the official concerned also shows that said survey was conducted on 01.04.1997 Ex. PW-2/1 (OSR).
13. As such, this document Ex. PW-2/1 also shows that the respondent was the tenant in the year 1997 and this document manifestly refutes the claim of the respondent that he got the ownership of the tenanted premises in the year 1984.
In case titled as Jiwan Lal Vs. Gurdial Kaur & Ors. 1995 RLR 162 a Bench of Hon'ble High Court of Delhi while dealing with the concept of ownership in a pending eviction petition under Section 14(1)(e) of the DRC Act had noted as follows:
"There is a tendency on the part of tenants to deny ownership in cases under Section 14(1)(e). To test the substance of such a plea on the part of the tenants the Courts have insisted that they should state who else is the owner of the premises if not the petitioners. In the present case it is not said as to who else is the owner. Further these cases under Section 14(1)(e) are not title cases involving disputes of title to the property. Ownership is not to be proved in absolute terms. The respondent does not claim the owner of the premises."
Further, in the case titled as Smt. Shanti Sharma & Ors. Vs Smt Ved Prabha & Ors. 1987 AIR 2028, the Hon'ble Supreme Court observed:
-
"That the meaning of term 'owner' is vis a vis the tenant i.e. the owner should be something more than the tenant."ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 9 /17
14. It is well settled law that the petitioners should be something more than a tenant and the petitioners need not prove the ownership in absolute term.
Even if it is assumed that the petitioners are not the absolute owner of the tenanted premises, the petition is maintainable.
Perusal of record also shows that the respondent has also claimed the ownership of the tenanted premises by way of adverse possession in paragraph No. 9 of the Written Statement.
15. I have carefully gone through the record and I have also gone through the order dated 25.09.2017 passed by the Hon'ble High Court of Delhi in the present case while granting the leave to defend to the respondent, wherein it is inter-alia observed as under:-
"13. The senior counsel for the petitioner at this stage contends that it is also his plea that the petitioner has been in possession of the premises since 1984 and his possession has matured into adverse possession.
14. The said plea is contrary to the settled position of law. Reference in this regard may be made to Mohan Lal Vs. Mirza Abdul Gaffar (1996) 1 SCC 639, Karnataka Board of Wakf Vs. Government of India (2004) 10 SCC 779, Anna Saheb Bapu Saheb Patil Vs. Balwant @ Saheb Babu Saheb Patil (1995) 2 SCC 543 and L.N. Aswathama Vs. P. Prakash (2009) 13 SCC 229; where it has been held that plea of adverse possession is mutually inconsistent with plea of lawful title to the premises.
15. Option has been again given to Senior counsel of the petitioner to clarify whether he claims possession to be by way of adverse possession or as agreement purchaser in possession.ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 10 /17
16. The senior counsel for the petitioner states that he will take the requisite plea in his written statement."
Perusal of record shows that despite observation made by the Hon'ble High Court both the pleas have been taken by the respondent in the written statement simultaneously. As such, this plea of the adverse possession also does not have any force.
16. In my considered view, the petitioners have been able to prove that they are something more than the tenant/respondent. As such, the ingredients in respect of landlordship as well as ownership are satisfied.
(iii) & (iv). BONAFIDE REQUIREMENT/ALTERNATIVE ACCOMMODATION:-
17. It is expedient to discuss some case law on these ingredients which are as under:-
In the case titled as Sarla Ahuja Vs United India Insurance Co. Ltd. AIR 1999 SC 100, the Hon'ble Supreme Court has held that:-
"The crux of the ground envisaged in clause (e) of Section 14(1) of the Act is that the requirement of the landlord for occupation of the tenanted premises must be bona fide. When a landlord asserts that he requires his building for his own occupation the Rent Controller shall not proceed on the presumption that the requirement is not bona fide. When other conditions of the clause are satisfied and when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord in bona fide. It is often said by courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises.ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 11 /17
While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
In Shiv Sarup Gupta Vs Dr. Mahesh Chand Gupta AIR 1999 SC 2507, at pg-2512 in para 14 & 15, Hon'ble Supreme Court held that:-
"14. The availability of an alternate accommodation with the landlord i.e. an accommodation other than the one in occupation of the tenant wherefrom he is sought to be evicted has a dual relevancy. Firstly, the availability of another accommodation, suitable and convenient in all respects as the suit accommodation, may have an adverse bearing on the finding as to bonafides of the landlord if he unreasonably refuses to occupy the available premises to satisfy his alleged need. Availability of such circumstance would enable the Court drawing an inference that the need of the landlord was not a felt need or the state of mind of the landlord was not honest, sincere, and natural. Secondly, another principal ingredient of Clause (e) of Sub-section (1) of Section 14 which speaks of non- availability of any other reasonably suitable residential accommodation to the landlord, would not be satisfied. Wherever another residential accommodation is shown to exist as available than the court has to ask the landlord why he is not occupying such other available accommodation to satisfy his need. The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonably suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation wherefrom the landlord is seeking eviction. Convenience and safety of the landlord and his family members would be relevant fact Ors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come."ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 12 /17
In the case titled as Ragavendra Kumar Vs Firm Prem Machinery AIR 2000 SC 534, it was observed as under:-
"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, (See: Prativa Devi (Smt.) v. T.K Krishnan, [1996] 5 SCC
353. In the case in hand the plaintiff-landlord wanted eviction of the tenant from the suit premises for starting his business as it was suitable and it cannot be faulted."
18. Perusal of record also shows that the petitioners have sought the tenanted premises for bonafide requirement of petitioners no. 5 as they do not have any alternative reasonably suitable accommodation.
On the other hand, the respondent has refuted the claim of bonafide requirement on the ground that the petitioners no. 5 is already working from another shop. That the requirement of the petitioners is not bonafide as they are in possession of second shop in the suit property and further the petitioners were in the possession of third shop in the suit property but have leased it out very recently to one tenant Sh. Pappu. That petitioners no. 5 is also working in one another shop. That petitioners no. 1 already has alternative accommodation for petitioners no. 5 to start the shop.
Perusal of record shows that the respondent has merely made vague assertions in respect of working of petitioners no. 5 and he has not made clear from which shop, the petitioners no. 5 is working and even it is assumed for the sake of arguments that the petitioners no. 5 is already working, it does not rule out the benefit U/S 14(1)(e) to the petitioners as everyone has right to excel in his life.
In case titled as "Labhu Lal Vs. Sandhya Gupta" [2011(1) RCR, (Rent) 231 (Delhi)], it has been held that the children are very much ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 13 /17 dependent on the landlord for the purpose of setting up their business and such a requirement is a bonafide one.
In the judgment of Hon'ble Supreme Court in case titled as Raghunath G. Panhale (dead) through L.Rs. Vs. Chagan Lal Sundarji & Co. (1999) 8 SCC 1 wherein it was held that:-
"It will be seen that the trial court and the appellate court had clearly erred in law. They practically equated the test of "need or requirement" to be equivalent to "dire or absolute or compelling necessity". According to them, if the plaintiff had not permanently lost his job on account of the lockout or if he had not resigned his job, he could not be treated as a person without any means of livelihood, as contended by him and hence not entitled to an order for possession of the shop. This test, in our view, is not the proper test. A landlord need not lose his existing job nor resign it nor reach a level of starvation to contemplate that he must get possession of his premises for establishing a business. The manner in which the courts have gone into the meaning of "lockout" in the Industrial Disputes Act, 1947 appears to us to be nothing but a perverse approach to the problem. One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long- drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back one's premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the long-drawn litigation he started some other temporary water business to sustain himself, that would not be an indication that the need for establishing a grocery shop was not a bona fide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant".
In the case titled as Ram Babu Agarwal vs. Jay Kishan Das 2009(2) RCR 455, the Apex Court observed as under:-
"However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 14 /17 premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also."
In the case titled as Lajpat Rai Vs Raman Jain 2012 Law suit (Del) 1439, it was observed by Hon'ble High Court as under:-
"The facts have been disclosed by the petitioners himself in the eviction petition; the petitioners also being a commerce graduate from the Shri Ram College of Commerce seeks an independent business of his own; thus this need to set up a business of his own cannot be in any manner be said to be imaginative or a need which is moonshine; it is a genuine need; the present petitioners having inherited this shop from his grandmother by virtue of the aforenoted Will wishes to set up his own business of rubber and latex which he was earlier carrying on with his father and in which he has gained expertise and knowledge. Thus in no manner can it be said that this need of the landlord is not a bonafide need. The landlord is the best judge of his requirement; it is not for the tenant to dictate terms to him; neither the Court tell him the manner he wishes to set up his business."
19. Perusal of record shows that the respondent has claimed that the petitioners are having alternative accommodation in their possession.
On the other hand, the petitioners refuted his allegation stating that they are not having alternative reasonably suitable commercial accommodation with their possession.
In the present eviction petition, petitioners have themselves stated that the second shop in the suit property is on the side lane which is in ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 15 /17 occupation of another tenant Sh. Pappu shown in yellow colour in the site plan.
20. I have carefully and minutely gone through the record as well as the site plan Ex. PW-1/1 which shows that this shop is in possession of tenant Sh. Pappu. Although, the respondent has claimed that aforesaid shop was leased out by the petitioners recently for the purposes of showing bonafide in the present eviction petition yet no material on record has been placed by the respondent to show the malafide on the part of the petitioners. On the other hand, petitioners themselves have shown this fact in the eviction petition.
21. In my view, everyone has a right, as well as duty to work for himself/herself and for the family members dependent on them. It is well settled proposition of law as held in catena of judgments of Hon'ble superior courts that bonafide requirement of a person does not become malafide merely because he/she is working somewhere. As far as dependency of the son of the petitioners is concerned, the children of a person are always dependent upon their parents. Moreover, in my view everyone has a right to excel in his/her life. A person is not supposed to be stagnated in the same position and status in the entire life, otherwise there will be monotony in the life. It is also on record that the son of the petitioners is residing in the same premises where the tenanted premises is situated. As such, it is not the case of the respondent that he will not be able to commute easily to tenanted premises to run the business at tenanted premises.
ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 16 /1722. As such, these two ingredients in respect of bonafide requirement and non-availability of alternative reasonably suitable commercial accommodation are also satisfied.
CONCLUSION:-
23. Keeping in view all the facts and circumstances of the present case, material on record, settled proposition of law and the reasons as discussed earlier, I am of the considered view that the petitioners has proved all the ingredients of Sec. 14(1)(e) of D.R.C. Act. As such, the present eviction petition is allowed and an eviction order is passed in favour of petitioners and against the respondent in respect of the tenanted premises i.e. one office-cum-shop situated in the front portion of the property bearing No. D-572, Tagore Garden Extension, New Delhi-110027, as shown in red in the site plan Ex.PW1/1 attached with the petition.
24. However, the landlord/petitioners shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of order keeping in view Section 14(7) of DRC Act.
25. File be consigned to Record Room after due compliance.
Digitally signedAnnounced in the open Court AJAY by AJAY NAGAR Date: on 9th January, 2019 (This judgment contains 17 pages) NAGAR 2019.01.09 17:02:38 +0530 (Ajay Nagar) Commercial Civil Judge-Cum Additional Rent Controller, West District, THC, Delhi. ARC No. 165/17 Sh. Amarjeet Kaur & Ors. Vs Sh. G.S. Lamba Page 17 /17