Delhi District Court
Smt. Sharda Devi vs Sanjay Jain on 30 August, 2017
IN THE COURT OF SH. A.S. JAYACHANDRA, DISTRICT & SESSIONS
JUDGE, SHAHDARA, KARKARDOOMA COURTS, DELHI
(1) RCA No. 22/16
Smt. Sharda Devi
W/o Late Shri Shyam Lal
R/o D-23, East Arjun Nagar,
Delhi-110092 ...Appellant
Versus
1. Sanjay Jain
S/o late Shri Mittar Sain Jain
R/o X/3368/27, Gali No. 2,
Gandhi Nagar, Delhi-110031
2. Shri Vinod Kumar
S/o Shri Shish Pal Singh
R/o IX/5284, Old Seelampur,
Delhi-110031 ...Respondents
Date of Institution : 18.06.2013
Date of Arguments : 23.08.2017
Date of judgment : 30.08.2017
(2) RCA No. 66/16
Smt. Sharda Devi
W/o Late Shri Shyam Lal
R/o D-23, East Arjun Nagar,
Delhi-110092 ...Appellant
Versus
1. Sanjay Jain
S/o late Shri Mittar Sain Jain
R/o X/3368/27, Gali No. 2,
Gandhi Nagar, Delhi-110031
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 1/14
2. Shri Vinod Kumar
S/o Shri Shish Pal Singh
R/o IX/5284, Old Seelampur,
Delhi-110031 ...Respondents
Date of Institution : 30.07.2013
Date of Arguments : 23.08.2017
Date of judgment : 30.08.2017
Common Judgment
1. By a common judgment, both these appeals are being
disposed of since the parties to the appeal are common and arising
from the same litigation.
2. In the appeal no. 66/16 (Old No. 34/13), the appellant
who had faced eviction on the ground of non-payment of rent
challenges the order and likewise challenges similar order in Appeal
No. 22/16 (old No. 43/13) with regard to two properties bearing nos.
D-23 and D-28 respectively. The orders challenged are in E. No.
212/06 dated 20.05.2013 and 2.7.2013 respectively on the files of
Ld. Rent Controller, Shahdara, Delhi.
3. In the impugned order dated 20.5.2013, the Ld. Rent
Controller had passed an order directing the tenant to pay/deposit
arrears of rent @ Rs.900/- per month w.e.f. 30.5.2013, with respect
to the property no. D-23, East Arjun Nagar, Delhi-92 u/s 15 (1) of
DRC Act.
4. By the impugned order dated 2.7.2013, since the
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 2/14
earlier order was not complied, eviction is ordered u/s 14 (2) of DRC
Act in the same case. Now both the orders are under challenge.
The ambiguity in the appeals - Clarification :
5. In the memorandum of appeals at Para-1 - Brief
Facts, the property number is mentioned as D-28 in appeal no. 22/16
and the property no. D-23 is mentioned in Appeal no. 66/16. After
perusal of the trial court records, both the appeals filed by the tenant
pertain to one property bearing no. D-23, East Arjun Nagar, Delhi-92
and there are no different properties.
Brief Facts :
6. The landlords have filed a petition for eviction against
the tenant on the ground of non-payment of rent contending that
their predecessors in title sold the property on 3.5.2003 and the
same was notified to the tenant by a notice dated 20.5.2003. The
tenants are in arrears of rent @ Rs.900/- per month w.e.f. 3.5.2003.
By a legal notice dated 19.8.2003 the tenant was called upon to pay
the arrears. The tenant did not pay nor reply the notice.
7. The tenant in the court below urged that the actual
owner is one Lehari Singh, whose title is succeeded by Som Beer
and the said Som Beer made a gift in favour of the respondent.
Thereafter, the respondent sold the property to one Tajender Walia.
However, the respondent is in possession of the premises as a
licensee under Tajender Walia. The tenant denied that she was
inducted by one Pushpa Devi as a tenant from whom the landlords
claimed the title.
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 3/14
8. In the replication, petitioner clarified that Lehari Singh
was the initial owner of the entire property and he conveyed the title
to the extent of 200 sq yards by a sale deed dated 3.7.1964 to one
Leelawati. The said Leelawati expired on 4.5.1970. The legal heirs
of Leelawati by name Bharat Lal sold the property to Ram Pal and to
Pushpa Devi, the predecessor in title of the petitioners - landlords.
9. Thus, the controversy is with regard to the relationship
of landlord and tenant between the parties and the eligibility of the
landlord to claim the rents from the tenant. However, the court below
came to a conclusion that there exists a relationship of landlord and
tenant and that the tenant-appellant is liable to pay the rents.
Grounds in appeal :
10. It is urged that the impugned order is passed in a
haste without considering the evidence and the submissions but
based on surmises and conjectures. The court below being the Rent
Controller cannot decide the ownership. If the relationship is denied,
no order for recovery of rents could be passed. The documents
relied by the tenant were not considered. According to the tenant,
the property belonged to Tejender Walia, which the landlords wanted
to grab. There is a civil litigation pending in Suit No. 88/12 filed by
the said Tejender Walia pending before Sh. S.K. Sharma, Ld. ADJ.
The rent receipt placed by the tenants was not appreciated properly
even though there is no cross-examination. The title deeds produced
by the tenant were all forged and fabricated. The title of the
landlords are discredited contending that Leelawati never conveyed
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 4/14
any property. The notice u/s 14 (1) (a) of DRC Act is incorrect but
only an intimation of the alleged landlords informing the title.
Therefore, in both the appeals, the orders passed fixing the rent,
directing the tenant to pay the arrears and the subsequent order of
eviction for non-payment of rents are sought to be set aside.
11. Upon notice, the landlords appeared through their
counsel. Trial court records are summoned. Heard the Ld. Counsel
on either side. When the matter was heard in part, one Tejender
Walia had sent a copy of a letter that he addressed to Hon'ble Chief
Justice of our High Court and to other authorities by post. He did not
participate in the proceedings. He addressed a letter and kept quiet.
Contentions of the Appellant :
12. The Ld. Counsel for the appellant contended that
there is no relationship of landlord and tenant since the entire
evidence produced by the landlords in the trial court is forged and
fabricated. The property belonged to one Tejender Walia. The rent
receipt produced by the tenant was overlooked and the Ld. Counsel
submitted that the written arguments may be looked into. The same
is perused. Appellant is vehement with regard to there being no
relationship and the incompetence of the Rent Court to decide the
title. In the written arguments, the very facts are repeated.
However, he submits that the notice issued u/s 14(1) (a) of DRC Act
is not in accordance with law. Certain extent of land by various
documents produced by the tenant is claimed to be excess than the
original land available. Therefore, he submits that the appeals be
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 5/14
allowed.
Contentions of the respondent - landlords :
13. While repeating the facts of their case, as mentioned
above, it is contended that the order u/s 15 (1) of DRC Act is not
complied even today and the eviction order thereafter is highly
justified. The gift deed by which the relationship is sought to be
denied is not a valid document in the eye of law since the same is
not registered and opposed to Section 17 of the Registration Act.
The Ld. Court below was justified in not relying on the rent receipt
which had shown the rate of rent as Rs.40/- per month by the years
1983-1985 by Lehari Singh and the same were rightly rejected since
the property is sold by him to Leelawati in the year 1964. The
evidence of PW-2 Vinod Kumar remained unrebutted. All the rents
are legally recoverable. Therefore, the respondents pray for
dismissal of the appeals.
The issues in the appeals :
14. After perusal of the trial court records, the written
arguments filed by both the sides and after hearing the Ld. Counsel,
the only point that arise for determination in the appeal is "Whether
the impugned orders passed by the Ld. Rent Controller are
perverse, opposed to the law and facts on record or not?
In the above context, keeping in mind the contentions
of the parties, the above issue is being answered as under with the
following :
Reasons :
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 6/14
(a) The entire controversy in the appeal is with regard to the
relationship.
(b) The Ld. Court below while returning the finding had held that the
landlord as defined in Section 2 (e) of the DRC Act could be any
person receiving the rent, entitled to receive the rent either in his
own behalf or for the benefit of others or in capacity of a trustee or
guardian. The landlords have examined two witnesses and the
tenant had examined four witnesses. The PW-1 had traced the title
as to how it passed on from Lehari Singh, original Jamindar, to
Leelawati (200 Sq. Yards) and the LRs of Leelawati by name Bharat
Lal selling 100 Sq. Yards to Smt. Pushpa Devi and one Shanker
which was subsequently sold to the PW-1. In the cross-examination
of PW-1, the tenant no doubt had put a suggestion that one Tejender
Singh Walia is the owner which suggestion is denied by PW-1. It is
also suggested to PW-1 that she is the tenant under the said Walia
which was denied. In the pleadings, it is clear that the appellant is
in possession. In order to establish the entitlement of collection of
rent, the title deed is to be looked into since Section 8 of the Transfer
of Property Act comes into play. Under this section, the transferee is
vested with all the interest which the transferer is capable of passing
in the property including the rents and the profits thereof accruing
under the transfer. In Satyabhama Devi Chaubey vs. Ram
Kishore Pandey 1997 (2) RCJ, it was observed that no express
transfer of rights was necessary in case of transfer of property. In
order to understand the right claimed by the landlords, the notice
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 7/14
issued to the tenant assumes significance.
(c) Ex.PW1/H is the notice intimating the tenant about the
transfer of the property and calling upon her to pay the rents from the
date of transfer to the landlords namely Sanjay Jain and Vinod
Kumar. This notice is sent under RPAD and acknowledged by
Sharda Devi which acknowledgement is at Ex.PW1/K. Later on
Ex.PW1/L the notice dated 19.8.2003 is issued by registered post for
which the notice addressed to the tenant came to be refused which
document is at Ex.PW1/O. In this context, the contention of the
appellant that the respondents herein are not the landlords is to be
understood.
(d) RW-1 the tenant in the trial court had deposed that
Som Beer is the owner of the property succeeding his predecessor
in title namely Lehari Singh. She further deposed at Para 3 of the
affidavit that the said Som Beer out of love and affection made a gift
deed in favour of one Tejender Walia who had become the actual
owner. She had produced the fard, site plan, khatoni, GPA, etc. in
favour of Som Beer and the gift deed executed by Som Beer. The
relevant document is Ex.RW1/6 the gift deed. This gift deed
produced before the trial court is perused. This gift deed is dated
1.7.1999 unregistered but typed on two folios of the stamp duty
Rs.10 and Rs.5, respectively. This deed is inadmissible in evidence
in the following circumstances :
(i) The contents of the deed are that it is dated 1.7.1999
executed by Som Beer Singh on behalf of Lehari Singh. He
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 8/14
executes gifting the property of 100 Sq. Yards bearing Khasra
No. 277 to 279/1582/280/1554, 280 & 281 situated in Lehari
Colony, East Arjun Nagar, Delhi-32 occupied by Sharda Devi
the appellant and he had gifted it to Sharda Devi. This
document is a photocopy and not properly exhibited also.
This is an unregistered document.
(ii) It is argued by the Ld. Counsel for the appellant that the
gift deed need not be registered which is vehemently
opposed by the ld. Counsel for the respondent. Section 17 of
the Registration Act, 1908 makes it mandatory that the
instruments of gifts of immovable property needs to be
registered.
(iii) A gift deed is a compulsorily registrable document and it
takes effect only after its due registration. RW-1 in the cross-
examination at one time claimed to be the owner of the
property. She admits having not brought the title deeds. At
the same breath she claims that she is the licensee under
one Tejender Walia. RW-1 further claims that she had sold
the premises to Tejender Walia. Therefore the contentions of
the tenant are not clear and not based on the legal
admissible evidence.
15. The tenant claims having sold the property to the said
Walia and further claims to be in possession as a licensee under the
said Tejender Walia. Strangely, she had not even examined the said
Tejender Walia in support of her case nor did she produce any
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 9/14
documents.
16. The evidence of RW-1 the tenant, RW-2 who had
deposed with regard to the title in similar terms is not corroborated
by any documentary evidence. Likewise, the evidence of RW-3 &
RW-4 are only a self-serving testimony projected by RW-1 without
any documentary evidence. The gift deed is no evidence in the eye
of law. In these circumstances, after appreciating the evidence, the
law on the subject is to be understood.
17. A denial of title which falls foul of the rule of estoppel
containing in Section 116 of Evidence Act is considered in law a
malicious act on the part of the tenant as it is detrimental to the
interest of the landlord and does no good to the lessee himself.
However, it has to be borne in mind that since the consequences of
applying the rule of determination by forfeiture of tenancy as a result
of denial of landlord's title or disclaimer of tenancy by tenant are very
serious, the denial or disclaimer must be in clear and unequivocal
terms. (as laid down by the Hon'ble Supreme Court in Sheela &
Ors. vs. Firm Prahlad Rai Prem Prakash AIR 2002 SCC 1264)
18. In the instant case, the tenant denied the relationship.
She claims to be beneficiary of the gift deed at one point. On the
other hand, she pleads that she had conveyed the property to
Tejender Walia and thereafter, she remained in possession as a
licensee under the said Tejender Walia. All these defences are
merely a lip-service and parroted without any documentary evidence.
The contentions of the tenant are to be proved by proper
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 10/14
documentary evidence which were never proved in the court below.
19. In a recent ruling by our Hon'ble High Court in Mohd.
Naseer vs. Mohd. Zaheer 2017 (1) RLR page no. 337, his Lordship
Jayant Nath held as under :
"22. Clearly, the contentions raised by the petitioners appear
to be an allegation without any basis whatsoever. The
respondent on affidavit has denied the contention and has
named the occupants/tenants. The petitioner themself are
occupying a shop in the premises and would certainly have
better details if the respondent was in occupation of the two
shops. Mere raising of baseless contentions against the
landlord cannot be a ground for being granted leave to
defend to the petitioners. It cannot be said that the
petitioners have given facts or particulars which require to be
established by way of evidence. The petitioners have merely
made allegations for the sake of making allegation. There is
no merit in the said plea of the petitioner.
23. On the issue of landlord tenant relationship though the
learned counsel has stated that the petitioners have filed a
suit challenging the title of the respondent it transpired that
no such suit has been filed. It is admitted that the original
tenant, namely, the predecessors of the petitioner Sh. Mohd.
Saghir was a tenant in the property. It is claimed that Mohd.
Saghir executed and signed rent notes in favour of Smt.
Kapoori Devi. Hence, it is admitted that the predecessor of
the petitioner was a tenant of Smt. Kapoori Devi. The
respondents claimed title through a sale deed of 1996
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 11/14
executed by Smt. Kapoori Devi and her sons Shri Jagdish
Prasad and Jagannath and their legal heirs. There is no
challenge to the sale deed in favour of the petitioners though
it was executed 20 years ago. There are no reasons to
disagree with the findings recorded by the trial court about
the respondent being a landlord of the premises and there
being a relationship of landlord tenant between the parties."
20. In view of the above clear position of law, the tenant
cannot deny the title of the landlord in view of the rule of estoppel
contained in section 116 of the Evidence Act that no tenant of
immovable property or a person claiming to be such a tenant shall
during the continuance of the tenancy be permitted to deny title of
the landlord. The relationship can be presumed under the
circumstances of PW-1 having produced the title deeds registered
and the subsequent notices of intimation at Ex.PW1/H which is duly
received and acknowledged by the tenant at ExPW1/K.
21. It is seen that one Tejender Singh Walia wanted to get
impleaded into the matter which application was dismissed. The
impleading applicant appealed against such an order. His Lordship
P.S. Teji (as he is then was) had upheld the order of dismissal of the
application by noting that the Ld. Trial judge is not to decide
ownership of the property which envisages exclusively with the civil
courts, while disposing the RCA no. 6/2009 by an order dated
24.7.2009. This order has become final.
22. By the above, it is clear that the there remains a doubt
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 12/14
regarding the title between the respondents herein and one Tejender
Walia concerning the suit property for which the appropriate civil
court has to return the findings in a proper suit. This court nor the
Ld. Rent Controller were made aware about any suit pending and
the nature of the prayers and the result thereof. However, the same
remains an issue where the present appellant has nothing to say in
the matter since it concerns the title between the rival claimants and
the tenant is only claiming the permissive possession under the said
Walia. Suffice it to say that the landlords in the trial court had shown
better title to agitate that they are the title-holders and the tenant
failed to establish that she is in permissive possession of the
property under one Tejender Singh Walia. Their rights to agitate
seeking collection of rent and the consequences under Section 14(1)
(a) of the DRC Act is only to be read in the context of the definition
under section 2(e) of the DRC Act as rightly held by the Ld. Court
below. The silence on the part of the tenant to the notices received
by her at Ex.PW1/H and the refusal to receive the other notice at
Ex.PW1/L are to be viewed in the context of the respondent having
admitted that she used to pay the rents to Lehari Singh from whom
the title had passed on to the landlords.
23. After examining the entire trial court records, this court
sees no perversity or illegality in the findings of the Ld. ARC.
However, it is made clear that the findings in the rent court shall not
be binding on one Tejender Singh Walia over the suit property, since
neither the Rent Court nor this court is competent to declare the title
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 13/14
to the property. The findings are merely to acknowledge the rights to
collect the rents and to seek such reliefs under Rent Control Act
concerning the tenants in the property. Consequently, the following
order :
ORDER :
Both the appeals stand dismissed.
Parties to bear their own costs. A copy of this order along with the trial court records be sent to the trial court and file be consigned to Record Room.
Pronounced In the (A.S. Jayachandra) open court on 30.08.2017. District & Sessions Judge, Shahdara, KKD Courts, Delhi.
Sharda Devi Vs. Sanjay Jain (Common Judgment ) RCA No. 22/16 & RCA No. 66/16 Page 14/14