Delhi District Court
Asha Rani vs Prakash Kaur on 19 February, 2024
IN THE COURT OF CCJ CUM ARC, CENTRAL, TIS
HAZARI COURTS
RC ARC No. 309/2019
Smt. Asha Rani Vs. Prakash Kaur & Ors.
CNR No. DLCT03-002882-2019
In the matter of :
Smt. Asha Rani,
W/o Sh. Balbir Singh,
R/o 2084, Second Floor,
Street No. 5, Chuna Mandi,
Paharganj, Delhi-110005. ...Petitioner
Versus
1. Smt. Prakash Kaur,
W/o Late Sh. Achhar Singh,
R/o House No. 1944, Second Floor,
Gali No. 9, Chuna Mandi,
Paharganj, Delhi-110055.
Also at:
2527/61, Ground Floor,
Nalwa Gali, Chuna Mandi,
Paharganj, Delhi-110055.
2. Sh. Gurpreet Singh,
S/o Late Sh. Achhar Singh,
R/o House No. 1944, Second Floor,
Gali No. 9, Chuna Mandi,
Paharganj, Delhi-110055.
Also at:
2527/61, Ground Floor,
Nalwa Gali, Chuna Mandi,
Paharganj, Delhi-110055.
RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.1/29
3. Sh. Gurvinder Singh,
S/o Late Sh. Achhar Singh,
R/o House No. 1944, Second Floor,
Gali No. 9, Chuna Mandi,
Paharganj, Delhi-110055.
Also at:
2527/61, Ground Floor,
Nalwa Gali, Chuna Mandi,
Paharganj, Delhi-110055.
4. Ms. Ravinder Kaur,
D/o Late Sh. Achhar Singh,
R/o House No. 1944, Second Floor,
Gali No. 9, Chuna Mandi,
Paharganj, Delhi-110055.
Also at:
2527/61, Ground Floor,
Nalwa Gali, Chuna Mandi,
Paharganj, Delhi-110055. ...Respondents
ORDER ON LEAVE TO DEFEND
1. This order shall decide whether the respondents can be granted leave to contest the present petition filed by the petitioner u/s 14(1)(e) of Delhi Rent Control Act 1958 (hereinafter referred to as DRC Act).
2. The petition has been filed in respect of property comprising of three rooms and measuring, about 33 sq. yds. bearing No. 2527/61, Ground Floor, Chuna Mandi, Paharganj, Delhi-110055 as described in red colour in the site plan (hereinafter referred to as tenanted premises). The case of the petitioner is that the petitioner is the owner of 39.17% undivided RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.2/29 and unspecified share (360 sq. yds. i.e. 301.10 sq. mtrs.) of the entire built up property bearing No. 2524 to 2530 and parts of property bearing No.2527, built up on khasra No. 521, out of total area of measuring 919.0 sq. yds., i.e. 768.68 sq. mtrs., Gali Nalwa, Chuna Mandi, Paharganj, Delhi. That the petitioner bought the same from original owner/landlord of said property i.e. Sh. S. Pawanjit Singh Bawa by way of two sale deeds both dated 27.07.2010. That as per the oral understanding and arrangement with other co-owners the petitioner has become owner of various flats numbers or rooms with respective occupants i.e.
i) Flat No.2524 (Part) first floor and above (old tenant Sh. Jagir Singh is not paying rent)
ii) Flat No.2525, Ground Floor (part) (It is a long room ad-measuring 12'x 30' lying locked. The major portion is in possession of another owner and presently in occupation of Sh. Virinder Aggarwal)
iii) Flat No.2526, Ground Floor (old tenant S. Rajender Singh Juneja paying rent to petitioner)
iv) Flat No.2527/1, Ground Floor (Tenant Sh. Ashok Kumar paying rent to petitioner)
v) Flat No.2527/27, Ground Floor only one room (tenant is Sh. Vinod Kumar and no rent is paid to petitioner otherwise it is in dilapidated condition. The complaint to MCD is made in this respect)
vi) Flat No. 2527/29, (Part) First Floor and above. (Sh. Darshan Singh old tenant is not paying any rent to petitioner).
vii) Flat No. 2527/42, (part) First Floor and above. (tenant is not paying rent to petitioner. The second floor is only small room and in occupation of labour-cum-care taker but RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.3/29 not paying rent).
viii) Flat No.2527/54, Ground Floor, One room only (Sh. Rajesh Aggarwal is old tenant and not paying rent)
ix) Flat No.2528, Ground Floor, one room and toilet, kitchen (old tenant is not paying rent)
x) Flat No.2530, First Floor, Second Floor and above (tenants are paying rent).
3. That the entire property has been partitioned among the joint owners and the tenanted premises with other properties as mentioned above have fallen to the share of petitioner herein. That there is no dispute between the co-owners as they have arrived at oral understanding among themselves. That the tenanted premises was let out by the erstwhile owner/landlord to deceased Sh. Kishan Singh, grandfather of respondents No. 2 to
4. That after the demise of Sh. Kishan Singh, the tenancy was inherited by Sh. Achhar Singh and after his death, the respondents have inherited the tenancy right as per law. That the premises in occupation of respondents are three rooms on the ground floor. That initially the said premises were being used as residential but subsequently the predecessor-in-interest of the respondents started using the same for running the business of real estate under the name and style of 'Preet Property Dealers' and removed kitchen, bath and toilet. That in one room, the household articles are lying and one room is used as a store and one room is used as office to run real estate business.
4. That in 2009, the late Sh. Achhar Singh filed a civil suit against the husband of petitioner when he was in occupation of first floor of demised premises as tenant and Sh. Achhar Singh RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.4/29 claimed himself to be the tenant of demised premises. That petitioner herein is an old lady aged about 57 years and suffering from age related problems i.e. years arthritis, sugar, thyroid, Blood Pressure etc. etc. That presently, petitioner is living on second and third floors of property No.2084, Chuna Mandi, Paharganj, Delhi, owned by petitioner's husband Sh. Balbir Singh as shown blue in site plan marked Annexure 'B'. That the petitioner is living on second and third floors of this property along-with her husband, two sons, daughter-in-law and a grandchild aged about 4 months. That the petitioner developed osteoarthritis in 2009 but she had been taking medicines and taking treatment from local Doctors, Homeopathic and Ayurvedic treatment. But gradually due to heavy body weight and passage of time, the said osteoarthritis has become more chronic of Grade-IV nature and the petitioner has been advised for knee replacement. Due to that, the petitioner is finding it difficult to climb stairs.
5. That besides the properties mentioned above, the petitioner has a plot at Haridwar. The petitioner's married daughter Smt. Preeti Rajput is also owner of following properties: :-
i) Flat No.2527/28, Ground Floor,
ii) Flat No. 2527/42, First Floor (Part) and above
iii) Flat No 2527/62, Ground Floor, and
iv) Flat No. 2527/74, First Floor and above.
That the petitioner has two sons Sh. Gaurav Kumar and Saurabh Kumar. That Sh. Saurabh Kumar has one shop RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.5/29 bearing property No. 2530/3, Chuna Mandi, Paharganj, Delhi which is on lease with one Sh. Dharam.
6. That respondent has willfully caused or permitted to be caused substantial damage to the demised premises by putting shutter on the said premises without the written consent of the landlord. That he has also removed the kitchen, bath and toilet and converted the same into room and using the same as office without the written consent of the petitioner. That out of three rooms, one room is used for keeping household articles, one room is used a store and one room is used as office to run real estate business. That the premises in question admittedly were let out for residential purpose and entire family had been residing therein and they all had identity proofs of the premises. That the deceased father of respondent No. 2 to 4 has specifically mentioned in the civil suit filed by him that the said premises were taken on rent from Sh. Bawa Jagjit Singh. That the rent receipt filed by Sh. Achhar Singh in the civil suit issued to Sh. Kishan Singh by Bawa Jagjit Singh unmistakably show the nature of premises was a 'quarter' and not any office.
7. That Sh. Gurpreet Singh respondent No.2 has acquired vacant possession of second floor in part of property No. 1944, Street No.9, Chuna Mandi, Paharganj, Delhi which comprises of two bed rooms, one drawing-cum-dinning room, two toilets-cum- bathrooms with balcony, having area of 76.5 sq. yds., vide registered sale deed dated 24.05.2014 and they all are living therein. That the respondents also have another residential accommodation bearing flat No. 2527/2, Ground Floor, Nalwa Street, Chuna Mandi, Paharganj, Delhi, in Khasra No.522 under RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.6/29 the ownership of one Sh. Virinder Kumar Aggarwal.
8. That the premises in question are bona fidely required by petitioner mainly for herself as she is unable to climb stairs and she wants to get herself operated upon for knee replacement as advised by RML Doctors. That the petitioner or her family members do not own any other reasonably suitable residential or non-residential premises in Delhi or anywhere else except stated herein above. Hence, the present petition.
9. Upon service of summons, the respondents appeared and filed their leave to defend application along-with affidavit. The respondents are seeking leave to contest the present petition on the following grounds:
(a) That the respondent No. 3 has an office/property/shop in the name of 'Preet Properties' at 2527/61, Ground Floor, situated at Plot No. 55, Khasra No. 521, Block B, Nalwa Street, Opposite Mother Dairy, Chuna Mandi, Paharganj, Delhi-55, ad measuring 35 sq. yards, which was purchased by his father Late Sh. Achhar Singh in the year 1998 from late Sh. Jagjit Singh Bawa. That late Sh. Achhar Singh also executed a Will regarding the said property on 28.06.2013 by which the said property was bequeathed to respondent No. 2 and respondent No.3 in equal ratio with the condition if, respondent No.2 does not get married within 05 years from the date of execution of the said Will, then he shall not have with any right in the said property and the respondent no. 3 shall be the absolute owner. That all other movable assets were bequeathed to the Ms. respondent no. 4 and as per said Will, the respondent no. 3 has become absolute owner of the said property.
RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.7/29(b) That the site plan filed by the petitioner is not correct.
(c) That in the year 1998, the late Sh. Jagjit Singh Bawa sold the said property to the late Sh. Achhar Singh. That the same was well within the knowledge of the son of late Sh. Jagjit Singh Bawa and other family members and there was no objection thereof. That late Sh. Jagjit Singh Bawa had executed all the legal documents required for transferring the said property in favour of late Sh. Achhar Singh, husband of the respondent No. 1 and father of respondents no. 2 to 4, after receiving the agreed sale consideration amount i.e; Rs. 6,35,000/- from him. That late Sh. Jagjit Singh Bawa had executed a GPA, agreement to sell, will and issued a letter of possession along with the affidavit dated 12.09.1998 in favour of the late husband of the respondent no. 1 and father of respondent no. 2 to 4 in respect of the said property.
(d) That initially the said property was the lease hold property which was registered in the name of Sh. Jagjit Singh Bawa in the office of Sub-Registrar Nazul Delhi on 21.09.1952 and later in the year 1967, the leased deed was executed by Delhi Development Authority on 30.11.1967 which was registered in the name of Sh. Jagjit Singh Bawa on 31.01.1968 in the office of Sub-Registrar-III, Delhi. It was a total plot of 919 sq. yards having khasra no 521. That the above said suit property was taken by the grandfather of respondent No. 1 late Sh. Kishan Singh on rent from late Sh. Jagjit Singh Bawa. That this Khasra no 521, which is a 919 sq. yards plot, is an old constructed and is a mini housing complex which is known as RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.8/29 "Katra" having approx. 26 units/houses/rooms. That after the death of grandfather of the respondent No. 3, in the year 1993, the father of the respondent No. 3, late Sh. Achhar Singh has started paying the rent of the said suit property to late Sh. Jagjit Singh Bawa as his tenant and after the death of the grandfather of the respondent No. 3, the rent receipts of the same were also issued by Late Sh. Jagjit Singh Bawa in the name of the father of the respondent No. 3. That father of the respondent No. 3 has been using and occupying the said property with the grandfather of the respondent No. 3 for last about 62-63 years. That in the year 1995, father of the respondent No. 3 started the property consultancy business from there under the name and style 'Preet Properties'.
(e) That the respondents had been using the aforementioned property for around more than 60 years. That respondent No. 3 helped his father in the business and later on his brother Mr. Gurpreet Singh i.e. respondent No 2, who is a chartered accountant by profession, has also started his office from the aforementioned suit property without any obstruction. That father of respondent No. 3 on various occasions had applied for licenses/certificates from the concerned department/ authority of the government for his business and the same were issued.
(f) That after death of his father, the respondent No. 3 has became the absolute owner of the above said property and he had paid the full charges of conversion and parking along with the registration charges to M.C.D and also paying the property tax regularly of the said property to the concerned authority.
RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.9/29(g) That in the year 2009, Sh. Jagjit Singh Bawa expired, who was the owner of three khasras bearing no. 521, 522 and 523 on plot no. 55, on which more than 100 rooms/units approximately were built and the same was having numbers 2524 to 2530 and 2527/1 to 2527/85, out of which few were heard to be sold and others were given on rent. That after the death of the Sh. Jagjit Singh Bawa there were disputes among the successors of late Sh. Jagjit Singh Bawa with respect to the legacies left behind by them. That the petitioner herein is claiming that she has purchased the suit property from Sh. Pawanjit Singh Bawa, son of late Jagjit Singh Bawa in the year 2010 and is owner of 39.17% (undivided and unspecified share 360 sq. yards viz. 301.10 sq. meters). That in the year 2018, the respondent No. 3 came to know that the Pawanjit Singh Bawa has sold some properties at Plot No. 55 situated having Khasra No. 521 including the suit property to different buyers by executing sale deeds of undivided and unspecified shares, thereby unlawfully and illegally claiming to be the owner of the aforementioned suit property.
(h) That respondent No. 3 found out the registration records of immovable property and to the utter shock of him, it was found that Pawanjit Singh Bawa, illegally claiming to be the owner of the property, had fraudulently executed some sale deeds and sold property to different buyers. That respondent No. 3 applied for the certified copies of all the respective sale- deeds executed in respect of the aforementioned property including the suit property. That Sh. Pawanjit Singh Bawa unlawfully executed sale deeds in favour of Sh. Sunil Kumar and Kritika Arora, Smt. Asha Rani (petitioner herein), Smt. Preeti RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.10/29 Rajput, Smt. Anu Oberoi, Sh. Jagdish, Pankaj and Deepak in the year 2010. That said Sh. Pawanjit Singh Bawa has forged documents, and dishonestly and fraudulently obtained documents to unlawfully execute said sale deeds in favour of different buyers. That Sh. Pawanjit Singh Bawa has also got the properties transferred or mutated in the records of D.D.A in his name based on some forged documents even though he was well aware of the fact that the above said property/plot has been divided into different parts and the same has been sold or rented out to different persons and he was also well aware that his father, late Sh. Jagjit Singh Bawa had sold the suit property to the father of the respondent No. 3 in the year 1998 while executing transfer documents in favour of the father of the respondent No. 3 after receiving the sale consideration.
(h) That petitioner herein although has mentioned in the present petition that she had filed an eviction petition against one Mr. Rajinder Singh Juneja, for vacation of the tenanted premises bearing no. 2526, being part of the built up property, having khasra no. 521, Chuna Mandi, Paharganj, New Delhi, on the ground of bonafide requirement under section 14 (1) (e) of the Delhi Rent Control Act, but the same was dismissed.
(i) That on coming to know about the plea taken by the petitioner and said Sh. Pawanjit Singh Bawa, the respondent No. 3 checked up his records and also met the previous lawyer of his father who after checking told respondent No 3 that in the said civil suit, writing about the father of the respondent No 3 as a tenant of the suit property was a RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.11/29 typographical mistake as the word 'is' was wrongly typed instead of word 'was' and this fact was also established when the respondent No. 3 checked up the records of the said civil suit by obtaining a certified copy of the said civil suit for injunction and found that the rent receipt annexed with the said civil suit was of his grandfather, late Sh. Kishan Singh and the context in which the said receipt was filed related to the father of the respondent No. 3 as a previous tenant only. That the said civil suit was for the purposes of injunction against the husband of the petitioner, who at that point of time was raising a unauthorized construction on the first floor of the suit property and never a title suit claiming some title. That the said civil suit was withdrawn after one or two hearings after the assurance by the husband of the petitioner that he will not do the unauthorized construction in the first floor of the suit property. There was no occasion for the father of the respondent No. 3 to correct that typing mistake of 'is' with 'was' as no written statement or rejoinder/replication was filed.
(j) That since the said Sh. Pawanjit Bawa in his statement before the police has denied the documents executed by his father to the father of the respondent No. 3, it is thus become necessary to seek the declaration of the documents executed by the father of said Sh. Pawanjit Singh Bawa in favour of father of the respondent No. 3 as genuine, valid and legal documents conferring the transfer of right/title of the suit property in favour of the father of the respondent No. 3 and as per Will of the father of respondent No. 3, the respondent No. 3 has already filed suit seeking decree of declaration declaring the documents viz. agreement to sell, GPA, receipt, Will, Letter of RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.12/29 possession, affidavit dated 12.02.1998 as valid, legal and genuine documents transferring the title/right in the suit property in favour of the father of the respondent No. 3 and in favour of respondent No. 3 as legal heir.
(k) That late Sh. Jagjit Singh Bawa was known as big property developer of the area and had many properties other than this total plot of 919 sq. yds. late Sh. Jagjit Singh Bawa used to purchase these properties and earn rental income and also use to sale purchase the properties among the tenants and new buyers. That in one of such case, late Sh. Jagjit Singh Bawa had also sold one of the similar property viz. another portion of 33 sq. meter of the above said khasra No. 521 block 55 which is known as 2527/21, Ground Floor situated at plot No. 55, khasra No. 521, Block-B, Nalwa Street, Chuna Mandi Pahar Ganj Delhi to the grandfather of the respondent No. 3. This property is situated at other corner of the present suit property and presently being occupied and owned by Shri Jagdish Chand to whom it was sold by the father of the respondent No 3. The sale deed of this portion was executed in the year 1993 by the orders of the Court in favour of grand father of the respondent No. 3 and later in the year 2010, it was sold by father of the respondent no 3 to Sh. Jagdish Chand. The said Jagdish Chand also filed a suit for mandatory injunction against the father of the respondent No. 3 in which direction was passed by the court to hand over the chain of documents to said Sh. Jagdish Chand, although in the sale deed it was mentioned that the original chain of documents have been already handed over to said Sh. Jagdish chand. The respondent No 3 and his brother Gurpreet Singh were impleaded as legal heir of their father. After the direction of mandatory RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.13/29 injunction, the respondent No. 3 along with his brother had filed an appeal in the High court against the said order of mandatory injunction and the said appeal was decided by the Hon'ble High court by which the issue of handing over of the said original documents was settled between the respondent No. 3 and said Sh. Jagidsh Chand. The respondent No. 3, on perusal of the other sale deeds as obtained from the office of Sub-Registrar has noticed that said Sh. Pawanjit Singh Bawa has sold the whole 919 sq. yards plot to five different buyers viz. 360 sq. yards to Asha Rani (vide 2 sale deeds), 84 sq. yards to Preeti Rajput (vide 2 sale deeds), 100 sq. yards to Sunil Kumar and Kritika Arora, 75 sq. yards to Anu Oberoi, 300 yards to Sh. Jagidsh Chand. That in all the sale deeds the area sold is unspecified and undivided. That the sale deed of 300 sq. yards to Sh. Jagdish Chand is also invalid since the said Jagdish chand had already purchased the area of 33 sq. meters by way of sale deed of 2010 from the father of the respondent No. 3. That it shows that the Sh. Pawanjit Singh Bawa has been doing all these fraud and selling the same land or part of land to different buyers just for the sake of money and very easily denying the previous documents.
(l) That since Sh. Pawanjit Singh Bawa has stated that he has sold the undivided, unspecified area by way of two sale deeds dated 27.07.2010 in favour of petitioner, the said sale deeds are liable to be declare null and void ab-intio in respect of area of the suit property of the respondent No. 3 since, Sh. Pawanjit Singh Bawa had no right or title of the area specified and in occupation of the respondent No. 3 as his father had already sold the said property to the father of the respondent no 3 by way of documents dated 12.09.1998.
RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.14/2910. Reply to the leave to defend application was filed by the petitioner in the form of counter affidavit in which the averments made by the respondents were denied by the petitioner and the contents of the petition are reaffirmed.
11. The respondents filed rejoinder to the counter affidavit filed by the petitioner. The respondents denied the averments made in the counter affidavit and the averments of the leave to defend affidavits are reiterated.
12. Arguments heard. Record perused.
13. In order to bring a case within the purview of section 14(1)(e) of DRC Act, the following requirements have to be met:
i). that there exist a landlord-tenant relationship between the parties,
ii). that the petitioner/landlord is the owner of the tenanted premises,
iii). that the tenanted premises are required by the petitioner for his bona fide need or need of his family members.
iv). that the petitioner does not have any other alternative suitable accommodation.
14. It is settled law that the burden on the tenant is limited in the sense that if the affidavit filed by him discloses such facts as would disentitle the landlord from obtaining an order for recovery of possession on the ground specified in Clause (e) of the proviso to Section 14(1) of DRC Act, the leave to defend should be permitted. It is not required by law that unless the tenant establishes a strong case as would non-suit the landlord, leave to defend application should not be granted.
RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.15/29However, leave to defend cannot also be granted for mere asking or in a routine manner which will defeat the purpose behind the special provisions of Chapter III-A of DRC Act. For availing leave to defend u/s 25-B(5), a mere assertion per se would not suffice as Section 14(1)(e) creates a presumption subject to the satisfaction of Rent Controller in respect of the bona fide need of the petitioner which is rebuttable with some material of substance to the extent of raising a triable issue. The tenant is expected to put in adequate and reasonable materials in support of the facts pleaded in the form of declarations in the affidavit. Though the satisfaction of the Rent Controller is subjective, degree of probability is one of the preponderance forming the subjective satisfaction of the Rent Controller. In this regard, reliance is placed on the recent judgment of Hon'ble Supreme Court in the case of Abid-Ul-Islam Vs. Inder Sain Dua (2022 6 SCC 30).
15. Reverting to the facts of the present petition, the respondents have disputed the ownership of the petitioner as well as the relationship of landlord and tenant between the parties. It is the case of the respondents that the grandfather of the respondent No. 2 to 4 i.e. late Sh. Kishan Singh was inducted as a tenant by late Sh. Jagjit Singh Bawa. It is the further case of the respondents that after the death of Sh. Kishan Singh, late Sh. Achhar Singh, husband of respondent No.1 and father of the respondent no.2 to 4, became the tenant under late Sh. Jagjit Singh Bawa. It is the claim of the respondents that late Sh. Achhar Singh has purchased the premises in question from late Sh. Jagjit Singh Bawa in the year 1998 vide GPA, agreement to sell, Will, affidavit and letter of possession all dated 12.09.1998. It is contended by the respondents that the petitioner has claimed RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.16/29 to have purchased the premises in question from Pawanjit Singh Bawa (son of late Sh. Jagjit Singh Bawa) but Sh. Pawanjit Singh Bawa was not the owner of the property. It is stated that Sh. Pawanjit Singh Bawa had executed sale deeds in favour of many persons including the petitioner unlawfully. It is further stated that the sale deed executed by Sh. Pawanjit Singh Bawa in favour of the petitioner is null and void as Sh. Pawanjit Singh Bawa sold undivided and unspecified portion of property in favour of the petitioner.
16. It is pertinent to mention that the documents relied upon by the respondents to claim that the tenanted premises were purchased by late Sh. Achhar Singh are not capable of creating any right, title or interest in the tenanted premises. As per Section 54 of Transfer of Property Act, 1882, an immovable property having value more than Rs.100/- can only be transferred by way of a registered sale deed and not by unregistered documents such as GPA, agreement to sell etc. It is a settled law that agreement to sell is incapable of conferring title in an immovable property. A combined reading of Section 54 of Transfer of Property Act and Section 17 of Registration Act would show that immovable property having value more than Rs.100/- can only be conveyed through a registered sale deed. Section 49 of the Registration Act, 1908 provides that a document which requires compulsory registration under the Act, if unregistered, is incapable of conferring any right in immovable property. The reliance in this regard is placed on the judgment passed by Hon'ble Supreme Court in Shakeel Ahmed Vs. Syed Akhlaq Hussain, Civil Appeal No. 1598/2023, dated 01.11.2023, wherein it was held :
"...10. Having considered the submissions at the outset, it RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.17/29 is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to sections 17 and 49 of the Registration Act and section 54 of the Transfer of Property Act, 1882. 11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i). Ameer Minhaj Vs. Deirdre Elizabeth (Wright) Issar and Others
(ii). Balram Singh Vs. Kelo Devi
(iii). M/S Paul Rubber Industries Private Limited Vs. Amit Chand Mitra & Anr.
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property. Once this is the settled position, the respondent could not have maintained the suit for possession and mesne profits against the appellant, who was admittedly in possession of the property in question whether as an owner or a licensee."
Therefore, the documents dated 12.09.1998 through which the respondents are claiming their title over the tenanted premises, are incapable of creating any interest in the property. Consequently, the claim of the respondents that late Sh. Achhar Singh had become owner of the tenanted premises in the year 1998 by virtue of the documents dated 12.09.1998 is liable to be rejected.
17. It is pertinent to mention that late Sh. Achhar Singh has filed a civil suit bearing No. 528/2009 against the husband of the petitioner claiming himself to be the tenant in the tenanted RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.18/29 premises. The plaintiff has filed certified copy of the plaint filed in the said suit. It is contended by the respondents that it was a typographical error in the pleadings where instead of the word 'was', the word 'is' was used. The contention of the respondents appears to be an afterthought because if the property was purchased by late Sh. Achhar Singh, there was no occasion for him to describe his past status of tenant in respect of the property. In the pleadings, no where it is pleaded that late Sh. Achhar Singh was the owner of the tenanted premises.
18. The word 'owner' has not been defined either in DRC Act, 1958 or in Transfer of Property Act, 1872. The word 'owner' has to be construed in the context of the purpose and object of the provision u/s 14(1)(e) of DRC Act. It was held in T.C. Rekhi Vs. Smt. Usha Gujral, 1970 RCR 292, that the word 'owner' in this clause seems to be inspired by the definition of the word 'landlord' as contained in section 2(e) of the DRC Act and is wide enough to include a person receiving or entitled to receive rent of any premises on account of or on behalf of or for the benefit of any other person. The concept of ownership in a landlord-tenant litigation governed by Rent Control legislations has to be distinguished from the one in a title suit before a Civil Court. In Smt. Shanti Sharma & Ors. Vs. Smt. Ved Prabha & Ors. 1987 AIR SC 2028, it was held by Hon'ble Supreme Court that the word 'owner' connotes that the petitioner/landlord has to have a better title than the respondent/tenant and is not required to show that he has the best of all possible titles for the purposes of section 14(1)(e) of DRC Act. The petitioner to an eviction petition under Section 14(1)(e) need not show that he is the absolute owner in the strict sense and has to show only a better RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.19/29 and superior title to the tenant. Reliance, in this regard, is placed on Parvati Devi v. Mahinder Singh 1996 (1) AD (Del) 819, B. Banerjee v. Romesh Mahajan 1996 (63) DLT 930, Milk Food Ltd. v. Kiran Khanna 1993 (51) DLT 141, Sushil Kanta Chakravarty v. Rajeshwari Kumar AIR 2000 Del 413, Ujjagar Singh v. Iqbal Kaur 2002 (97) DLT 646. In Boorugu Mahadev & Sons v. Sirigiri Narasing Rao 2016 3 SCC 343, it has been held as under:
"19. It is also now a settled principle of law that the concept of ownership in a landlord-tenant litigation governed by rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. (Vide Sheela v. Firm Prahlad Rai Prem Prakash)."
19. In view of the above preposition of law, the petitioner is not required to prove his absolute ownership and it is sufficient that the petitioner has been able to show that he has a better to the property than the tenant. In the present case, the petitioner is claiming her title through Sh. Pawanjit Singh Bawa in whose name the property No. 2524 to 2530 and part of property no.2527, plot No.55, khasra no.521, B-Block, Nalwa Street, Chuna Mandi, Paharganj, Delhi stood mutated after death of Sh. Jagjit Singh Bawa. It is not in dispute that Sh. Pawanjit Singh Bawa was the son of late Sh. Jagjit Singh Bawa, whose title is not disputed by respondents. The execution of sale deeds dated 27.07.2010 in favour of the petitioner by Sh. Pawanjit Singh Bawa for sale of 39.17% undivided share in property No. 2524 to 2530 and part of property no.2527, measuring 919 sq. RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.20/29 yards, plot no. 55, khasra No. 521, B-Block, Nalwa Street, Chuna Mandi, Paharganj, Delhi, is also not in dispute. Therefore, the petitioner has been able to show that she has a better title to the tenanted premises than the respondents. It is specifically pleaded by the petitioner that all the co-owners of the property have divided the portions of the property and thus, the tenanted premises have fallen to the share of the petitioner. As already observed, the documents dated 12.09.1998 did not create any right, title or interest in the tenanted premises in favour of late Sh. Achhar Singh and thus, his status in respect of the tenanted premises remained that of tenant only.
20. Further, it is not a requirement of law that a tenant must attorn to the purchaser of the interest of the lessor. Section 109 of Transfer of Property Act, 1872 deals with rights of the lessor's transferee. Section 109 of Transfer of Property Act, 1872 reads as under:
109. Rights of lessor's transferee.--If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.
Thus, it is very much clear from section 109 of RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.21/29 Transfer of Property Act, 1872 that rights in an immovable property are immediately transferred. If the property is in possession of a tenant then the transferee may exert his rights qua the property and deal with the tenant from the day of execution of instrument of transfer as landlord without doing any other act such as issuing letter of attornment. It is held by Hon'ble Supreme Court in Mahendra Raghunathdas Gupta Vs. Vishwanath Bhikaji Mogulm, AIR 1997 SC 2437, that attornment by tenant is not necessary though desirable. Similar view was taken by Hon'ble Delhi High Court in J.C. Mehra Vs. Smt. Kusum Gupta, 2004 7 AD (Delhi) 473. Therefore, the contention of the respondents is devoid of any merit.
21. It is also contended by the respondents that the sale deeds relied upon by the petitioner do not mention the property details of the tenanted premises. The contention is misconceived as the respondents themselves have stated that portion of the property was purchased by the petitioner from Sh. Pawanjit Singh Bawa (though the validity of the transaction has been questioned). It is relevant to note that the sale deeds in favour of the petitioner mentions the description of the property sold as '...Property bearing Municipal Corporation No. 2524 to 2530 and Parts of the property bearing No. 2527, plot No.55, having Khasra No.521, Block-B, put of total area measuring 919 Sq.
Yds., i.e. 768.68 Sq Mtrs., Situated in Ward No. XV, Nalwa Street, Chuna Mandi, Paharganj, New Delhi-110055'. The sale deeds are also accompanied by the site plan of the entire property. Moreover, no one from the family of late Sh. Jagjit Singh Bawa as well as other co-owners have objected either to the present petition or to the title of the petitioner qua the tenanted premises.
RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.22/29Thus, the contention of the respondents is found to be without any merits.
22. It can be seen from the above that the petitioner having a better title than the respondents has discharged her burden to establish her ownership and by virtue of her superior title, the petitioner is entitled to receive the rent from the respondents and she is thus, covered within the definition of 'landlord' under section 2(e) of DRC Act. Therefore, the landlord- tenant relationship for the purpose of section 14 (1) (e) of DRC Act is found established between the parties.
23. In regard to the bona fide need requirement of the petitioner and alternative suitable accommodation, it is pleaded that the premises in question are bona fidely required by petitioner mainly for herself as she is unable to climb stairs and she wants to get herself operated upon for knee replacement as advised by the doctors. That the petitioner wants to live comfortable family life in her own property and the premises in question are most suitable for petitioner. It is stated by the petitioner that she is presently residing on the second and third floor of the property No. 2084, Chuna Mandi, Paharganj, Delhi along-with her family consisting of her husband, two sons and their family members. It is stated that due to heavy body weight and her age, the osteoarthritis has become more chronic of Grade IV and thus, the petitioner is finding difficult to climb stairs. The petitioner has relied upon medical documents to support her assertion.
24. Per contra, the respondents have denied the assertion of the petitioner that she is residing at 2084, Chuna Mandi, RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.23/29 Paharganj, Delhi. It is pleaded that the petitioner is residing at property No. 2530, Nalwa Street, Chuna Mandi, Paharganj, Delhi. The respondents have relied upon the electoral roll pertaining to the year 2019. It is pleaded that at the property No. 2084, Nalwa Street, Chuna Mandi, Paharganj, Delhi is in possession of husband of the petitioner and her younger son Saurav Rajput. It is further pleaded that the X-ray report is forged as no payment receipt is produced and Smt. Asha Rani is claimed to be a beneficiary under CGHS whereas none of her family members are serving. It is further pleaded that in the eviction petition No. 322/17, the petitioner pleaded that she wanted to open a stationery shop as the same is four-five minutes' walking distance. It is pleaded that if the petitioner is unable to walk, it is not possible for the petitioner to run stationery shop by walking to the shop.
25. The law regarding the bona fide need has been clearly explained by the Hon'ble Apex Court in the case titled as Sarla Ahuja v. United India Insurance Co. Ltd., reported as AIR 1999 SC 100, whereby it was 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 is 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. While deciding the question of bonafides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself."
26. The respondents have contended that the petitioner RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.24/29 is residing at property No. 2530, Nalwa Street, Chuna Mandi, Paharganj, Delhi and not at 2084, Nalwa Street, Chuna Mandi, Paharganj, Delhi and to support the contention, the respondents have relied upon electoral roll pertaining to the year 2019. However, the contention of the respondents does not appear to be worthy of merit because the respondents have not specified as to on which of the floors of the property No. 2530, Nalwa Street, Chuna Mandi, Paharganj, Delhi, the petitioner is residing or whether the petitioner has ground floor in her possession. Nothing of that sort has been pleaded in the leave to defend affidavit. It is pertinent to mention that the petitioner has specifically pleaded that she wants to shift to ground floor for the purpose of residence because of her medical condition thus, it is not sufficient for the respondents to contend that in the electoral roll of year 2019 some different address of the petitioner is shown. It is also relevant to note that apart from the said electoral roll, the respondents could not produce any other document to convince this Tribunal that the petitioner is in fact residing on property No. 2530, Nalwa Street, Chuna Mandi, Paharganj, Delhi. It is also relevant to note that in the petition, the petitioner has categorically stated that the first floor, second floor and floors above, in property No. 2530, Nalwa Street, Chuna Mandi, Paharganj, Delhi are in possession of tenants, which is not denied by the respondents. In fact, nothing has been pleaded by the respondents about this averment of the petitioner. The contention of the respondents is also not worthy of consideration is because the respondents have themselves relied upon the facts pleaded by the petitioner in eviction petition bearing No. 322/2017, filed by the petitioner against Sh. Rajender Singh Juneja, to contend that RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.25/29 if petitioner is suffering from such medical condition then how she would be walking from her residence to run stationery shop at property No. 2526, Nalwa Street, Chuna Mandi, Paharganj. It is pertinent to mention that in the said petition, the petitioner had specifically mentioned her address to be property No. 2084, Gali No.5, Chuna Mandi, Paharganj and the petitioner put forth her requirement for the premises which were situated on the ground floor, in property No. 2526, Nalwa Street, Chuna Mandi, Paharganj, Delhi, stating that she wanted to run a stationery shop as the same is very close to her residence. Thus, the stand of the respondent appears to be contradictory. Moreover, it is not denied by the respondents that the property No. 2084, Nalwa Street, Chuna Mandi, Pahaganj, Delhi is lying vacant or not in active use of the petitioner. It is stated pleaded by the respondents themselves that the property No. 2084, Nalwa Street, Chuna Mandi, Paharganj, Delhi, is in possession of husband of the petitioner and her younger son. It is not case of the respondents that the petitioner, her husband and younger son have separated. In any event, the petitioner has put forth her requirement of having ground floor due to her medical condition and thus, any accommodation which may be situated on upper floors would not be an alternative suitable accommodation within the meaning of section 14 (1)(e) of DRC Act.
27. Further, the petitioner has relied upon medical documents to support her plea that she is suffering from Osteoarthritis Grade IV. These medical documents clearly show that the petitioner is suffering from knee Osteoarthritis of Grade IV and she is advised for knee replacement. The respondents RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.26/29 have raised only trivial objections to these documents. There appears to be no doubt about the genuineness of these documents. The respondents have also contended that in eviction petition No. 322/2017, filed against Sh. Rajender Singh Juneja, the petitioner stated that the premises under possession of Sh. Rajender Singh Juneja were at four-five minutes' walking distance and if that is so, then how the petitioner would be walking from her residence to that shop. The pleadings averred in the petition No. 322/2017 by the petitioner cannot be understood to mean that the petitioner was claiming to be walking from her residence to the said shop for running the stationery business. The contention of the respondents is thus, liable to be rejected.
28. The petitioner has put forth her requirement for the tenanted premises on the ground that she, on account of her medical condition, is unable to climb stairs and thus, wants the tenanted premises for her residence. It is already observed above that the petitioner has been able to show from the medical documents filed on record that she is suffering from Osteoarthritis of Grade IV. It is pertinent to mention that knee Osteoarthritis (OA) is divided into five stages. Grade IV OA is the most severe stage of OA. In this stage, joint space between the bones is generally reduced significantly, the cartilage is almost completely gone and the synovial fluid would be decreased. This stage is normally associated with high levels of pain and discomfort during walking or moving the joint ( see Lespasio MJ, Piuzzi NS, Husni ME, Muschler GF, Guarino AJ, Mont MA.Knee osteoarthritis: a primer. The Permanente Journal, 2017;21 and https://www.physio-
pedia.com/Knee_Osteoarthritis). Hence, if the petitioner is RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.27/29 wanting to use the tenanted premises for her residence because she is unable to climb stairs due to Osteoarthritis, it cannot be said to be a need not bona fide. It is not in dispute that the tenanted premises consists of three rooms only and thus, it cannot be said that having regard to the accommodation also, the petitioner has raised an outrageous demand. It is needless to mention that the factum of suitability of the premises needs to be decided by the landlord and is not to be examined on the touchstone of the tenant. Reliance, in this regard can be placed on Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta (1999) 6 SCC 222, Ragavendra Kumar Vs. Firm Prem Machinery & Co. (2000) 1 SCC 679. In Sait Nagjee Purshottam & Co. Ltd. Vs. Vimalabai Prabhulal & Ors., 2005 8 SCC 252, it was held by Hon'ble Supreme Court that it is always the privilege of the landlord to choose the nature and place of business, and tenant cannot dictate terms to the landlord and advice him what he should do and what he should not do. Similarly, it was held in Ragavendra Kumar Vs. Firm Prem Machinary, AIR 2000 SC 534, that it is settled position of law that the landlord is best judge of his requirement for residential or business purposes and he has got complete freedom in the matter. Accordingly, the need of the petitioner is found to be bona fide.
29. In view of the above discussion, the respondents have not been able to raise any triable issues. The leave to defend application is therefore, dismissed. The eviction petition filed by the petitioner is allowed and the petitioner is found entitled to recover the possession of the tenanted premises i.e. three rooms , in property bearing No. 2527/61, Ground Floor, Chuna Mandi, Paharganj, Delhi-110055 as described in red colour in the site RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.28/29 plan.
30. There shall be no order as to costs. In view of the provisions of Section 14 (7) DRC Act, 1958, this order for recovery for possession shall not be executed before expiration of a period of 6 months from this date.
Announced in open Court on 19th Day of February, 2024 (Pranav Joshi) JSCC-cum-ASCJ-cum- GJ/Central, THC/Delhi/19.02.2024 RC ARC No. 309/2019 Smt. Asha Rani Vs. Smt. Prakash Kaur & Ors. Page No.29/29