Delhi District Court
Seema Sharma vs . Rakesh Kumar on 15 December, 2015
IN THE COURT OF MS. RACHNA TIWARI LAKHANPAL
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
E. No. 2/2014
Unique ID No. 02401C0055822014
SEEMA SHARMA VS. RAKESH KUMAR
Date of filing of the suit : 31.01.2014
Date of reserving order : 24.11.2015
Date of pronouncement : 15.12.2015
ORDER
1. Vide this order, I shall dispose off leave to defend application u/s 25B (4) of DRC Act filed by the tenant/respondent.
2. FACTS IN BRIEF AS PER THE PETITION: The petitioner filed the present petition under Section 14(1)(e) DRC Act thereby stating that the tenanted premises is a godown forming part of the property bearing no. B410, Ground Floor, Sudarshan Park, New Delhi110015, which was let out for commercial purposes @ Rs. 3,400/ per month. Rent has not been paid by the respondent/tenant since August 2010.
3. The petitioner is now the owner/landlord of the property no. B410, Sudarshan Park, New Delhi110015. There are five shops and one godown, at the ground floor. Three shops have already been sold out to the various purchasers during the lifetime of petitioner's fatherinlaw E. No. 2/14 Page..... 1/14 and two shops are under the tenancy of the other tenants and one godown is under the tenancy of the respondent herein under the landownership of the petitioner.
4. The premises was let out to the respondent for commercial purposes by the deceased fatherinlaw of the petitioner. During his lifetime, petitioner's deceased fatherinlaw Sh.Subhash Sharma had executed a GPA, Agreement to Sell, Affidavit, Receipt, all dated 04.01.1988 and a Will dated 01.04.1988 in favour of his wife Smt. Usha Shamra in respect of the property no. B410, Sudharshan Park, New Delhi.
5. Smt. Usha Sharma expired on 03.05.2010. During her lifetime, she executed GPA and Gift Deed, both dated 18.03.2010 and a registered Will dated 22.04.2010 duly registered with the office of concerned Sub RegistrarII, Janakpuri, New Delhi in favour of the petitioner. The petitioner's husband had expired on 09.10.2009. After the death of Smt. Usha Sharma, the petitioner became the absolute owner of the aforesaid property and the respondent started paying rent to the petitioner till July 2010.
6. The family of the petitioner is consisting of petitioner herself E. No. 2/14 Page..... 2/14 and her minor son aged about 9 years.
7. The petitioner has let out two rooms at first floor, from which she receives Rs. 3000/ per month as rent and she herself is residing in the second floor and third floor of the property. The household expenses of the petitioner and her minor son are much more than her rental income. She is not having any other source of income to meet the household as well as day to day expenses and therefore she wants to start the business of Cosmetics and Beauty Parlour at the ground floor at the tenanted premises. There is no other alternative accommodation in her name except the aforesaid property. The said godown is suitable for running the business of Cosmetics and Beauty Parlour. The space of other rented shops is 7'x6'' and 7'x7'' approximately and is not sufficient to run the business of Cosmetics and Beauty Parlour.
8. CONTENTIONS OF THE RESPONDENT RAISED IN LEAVE TO DEFEND APPLICATION: In the present leave to defend application, it is contended that there is no relationship of the landlord and tenant between the petitioner and respondent. There is no single document or other evidence to show that the respondent is or has been a tenant under E. No. 2/14 Page..... 3/14 the petitioner.
9. Late Smt. Usha Sharma was the owner of one property no. B 410, Sudharshan Park, New Delhi110015. During her lifetime, she had executed an Agreement to Sell and Purchase dated 20.11.2007 for sale of ground floor the said property admeasuring about 10.5'' x 18'' in favour of the respondent for an amount of Rs. 2,25,000 and received a sum of Rs. 25,000/ as earnest money. She had agreed to execute the Sale Deed/transfer documents to complete the sale transaction. On 10.04.2008, an amount of Rs.1,75,000/ was also given by the respondent to Smt. Usha Sharma.
10. The respondent has made the entire payment and has been in peaceful enjoyment and possession of the suit premises in terms of Section 53A of Transfer of Property Act. The respondent had been requesting Smt Usha Sharma for execution of Sale deed/transfer documents but the same was being avoided by Smt. Usha Sharma on one pretext or other and the petitioner was aware about the said Agreement to Sell and Purchase of the property. The respondent has never paid any rent to the petitioner. There was no occasion at all for the respondent to pay any rent to the petitioner E. No. 2/14 Page..... 4/14 as he has not been the tenant under the petitioner but he is the owner in possession of the suit premises by virtue of Agreement to Sell and Purchase dated 20.11.2007. The documents filed by the petitioner i.e GPA and Gift Deed are forged and fabricated.
11. Further, as per Will of late Smt. Usha Sharma, the rights with respect to the property have been transferred upon the petitioner as well as Master Yash, son of the petitioner whereby as per the GPA and Gift Deed, rights have been transferred to the petitioner.
12. Further, there are contradictions in the case of the petitioner. At one place, she has submitted that the property was rented out to the respondent by the deceased husband of the petitioner and on other place, she has submitted that the tenanted premises was let out to the respondent by deceased fatherinlaw of the petitioner.
13. It is further submitted that late Smt. Usha Sharma had three daughters, who have given their respective affidavits in favour of the respondent confirming the execution of the Agreement to Sell and Purchase.
14. The petitioner is having several other E. No. 2/14 Page..... 5/14 properties/accommodations, which have deliberately and intentionally suppressed. The petitioner wants to dispose off the tenanted premises. The alleged requirement is self created by the petitioner.
15. REPLY TO LEAVE TO DEFEND APPLICATION: In reply to leave to defend application, apart from reiterating and reaffirming the version in the petition, it was submitted in the reply that documents of Agreement to Sell filed by the respondent are forged and fabricated. Further, there are no signature of first party on the last page of the alleged Agreement to Sell. There is contradiction with regard to the consideration amount. In the alleged documents, consideration amount has been shown as Rs. 2,25,000/, whereas the respondent mentioned in his leave to defend application that he paid Rs. 25,000/ and Rs.1,75,000/ towards the consideration amount, which shows contradiction and proves that the documents are forged and fabricated. The receipt dated 10.04.2008 is without any registration and serial number and is containing blank coloums.
16. The respondent has been the tenant of the petitioner. If at all, it is assumed that the respondent allegedly entered into the Agreement to E. No. 2/14 Page..... 6/14 Sell, then it is highly improbable that the respondent will not take any step for six years for completion of transfer of the property or a person would use the premises without any electricity for the last more than 45 years. The respondent has no legal right and title in the suit premises and therefore he did not get his electricity restored because the petitioner's motherinlaw did not give NOC to the respondent being owner.
17. It is further submitted that as per the law, if there are joint owners of the property, anyone owner can file the eviction petition against the tenant.
18. Further, in the petition, there appeared a typographical error and it was clarified that the property was rented out by the deceased fatherinlaw of the petitioner and not by the deceased husband of the petitioner.
19. I have heard the parties and perused the record.
20. COURT'S FINDINGS AND REASONING: The main contention of the respondent is with regard to challenge to relationship of landlord and tenant between the parties and basis of that challenge is an "Agreement to sell" and "Receipt" and the copy of the same was filed by E. No. 2/14 Page..... 7/14 the respondent. This court had asked for the production of original Agreement to Sell. The Agreement to Sell is unregistered and unattested. So much so, on the last page of it, there is no signature of the first party and second party i.e alleged seller and purchaser.
21. Proceeding further, the Agreement to Sell being unregistered is of no relevance and cannot be basis to grant leave to defend. The petitioner cannot seek the benefit under Section 53(A) of Transfer of Property Act as the ingredients of this Section i.e transfer of possession through registered Agreement to Sell are not fulfilled. Assuming but not admitting that Agreement to Sell was entered into between the respondent and previous owner, but that does not change the status of the respondent from tenant to purchaser except in case of any stipulation in this regard. There is no stipulation with regard to the fact that tenant was not bound to pay after entering into Agreement to Sell. Further, it is highly improbable that after giving the entire payment of the alleged purchase the respondent would keep silence and would not take any step for registration of sell deed or registration of documents. There is no notice or suit has been filed by the respondent in this regard. Further, E. No. 2/14 Page..... 8/14 there is apparent contradiction with regard to payment of alleged transaction amount as well. Hence, upon the basis of Agreement to Sell and Purchase filed by the respondent, no benefit can be derived by the respondent. Reliance is placed upon 2012 (1) RCR (Rent) 111.
22. Further, "Agreement to Sell" of immovable property does not create any right in the property save the right to enforce the said agreement. But that has not been done till date. In fact, limitation period has also been expired for the enforcement of the same. It is well settled law that mere Agreement to Sell will not terminate landlordtenant relationship unless there is specification to that effect in agreement itself. It was also held in 167 (2010) DLT 806 as under: "A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even it the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy that property as an agreement purchaser. This court in Jiwan Das Vs. Narain Das, AIR 1981 Delhi 291 has held that in fact no rights enure to the agreement purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto E. No. 2/14 Page..... 9/14 is executed. Thus in law, the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour".
23. Not only this, on the original receipt of dated 10.04.2008, a revenue stamp was affixed, which was not pasted properly and upon a scrutiny, it is revealed that underneath of the revenue stamp, another signature in English in the name of Smt. Usha Sharma is appearing and upon those signature, a revenue stamp was affixed. So much so, on the Agreement to Sell, there are signatures of namely Smt. Usha Sharma in English and Hindi. Half of the English signature has been done in the different ink and half of the English signature has been done with the different ink at each place.
24. Now moving further, the case of the petitioner is that the respondent paid rent till July 2010. Indisputably, there is no rent receipt. In the present leave to defend application, the respondent has nowhere submitted that he has never been a tenant of previous owner. Perusal of whole of leave to defend application reveals that on each and every page E. No. 2/14 Page..... 10/14 the relationship of landlord and tenant between the parties has been denied. There the denial has been with regard to the relationship of the tenant/respondent with the petitioner only. It has been submitted by the respondent that he has never been the tenant under the petitioner. It has nowhere specifically denied or submitted that the respondent has never been the tenant of motherinlaw or fatherinlaw of the petitioner and only inference from this can be derived is that the respondent admitted that he was a tenant earlier and he wanted to put up a case of Agreement to Sell and this argument has already been discussed and denied on the above part of this order. The respondent has further failed to show that he came in possession of after "Agreement to sell". Hence, the petitioner has successfully shown that the respondent has been a tenant. It is well settled principle that a person who is once a tenant will always remain a tenant and tenant cannot challenge the ownership.
25. Further, the respondent has challenged the documents of title of the property in favour of the petitioner. A contradiction has been pointed out by the respondent that Will has been executed in favour of the petitioner as well as her son, whereas GPA and Agreement to Sell are in E. No. 2/14 Page..... 11/14 favour of the respondent. I again find no basis in this contention because it is well settled that even a coowner is competent to file the petioner for eviction against the tenant.
26. Further, Will is registered and executant has expired and relying upon it, the petitioner is owner of the property. As far as this issue is concerned in the present case, the tenant cannot challenge the validity of the documents of his landlord or owner.
27. The tenant/respondent contended that other daughters of the deceased Smt. Usha Sharma are the owners. However, as discussed above that a coowner can file the suit for ejectment, this argument does not hold any basis.
28. Further, it is not disputed that the petitioner is residing at second floor and third floor of the property. The respondent has failed to disclose any other suitable alternative accommodation available to the petitioner. The apprehension of the respondent is that the petitioner wants to dispose off the property and her requirement is self created. If that is so, the remedy is always provided under Section 19 DRC Act to the petitioner and leave to defend cannot be granted upon the basis of E. No. 2/14 Page..... 12/14 apprehension.
29. Further, the petitioner has submitted that she wants to open a Beauty Parlour at ground floor at godown. Although exact measurement of the ground floor was not given but it was mentioned by the respondent himself that godown was admeasuring 10.5'' x 18'', which is apparently bigger than the shops rented out to the other tenants and it will be more suitable for opening a Beauty Parlour, which requires bigger space. Further, it is not disputed that other shops are under tenancy. In such a scenario those shops are not alternative suitable accommodation as those are not vacant. The respondent cannot compel the petitioner to pick and choose other particular tenant occupying other parats of the premises. Reliance is placed upon "MANU/DE/2182/2013 titled as Anil Kumar Vs. Sardari Lal.
30 Therefore, respondent has failed to disclose any plea which would disentitle the petitioner from obtaining from recovery of possession of the tenanted premises. Accordingly, application for leave to defend is dismissed and eviction order is passed in favour of the petitioner and against the respondent in respect of the tenanted premises i.e B410, E. No. 2/14 Page..... 13/14 Ground Floor, Sudarshan Park, New Delhi110015 This order, however, shall not be executable for the period of six months from today.
16. File be consigned to record room.
ANNOUNCED IN THE OPEN (RACHNA TIWARI LAKHANPAL)
COURT ON 15.12.2015 SCJ/RC(WEST)/ DELHI
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