Delhi District Court
Sh. Ajay Singh Saini vs Sh. Dharamveer on 19 August, 2011
IN THE COURT OF SH. LALIT KUMAR, CCJCUMARC,
CENTRAL, DELHI.
E36/2009
Sh. Ajay Singh Saini
s/o. Late Sh.Ram Singh Saini
r/o. 4865, Laddu Ghati, Phara Ganj,
New Delhi55. ...... Petitioner
Versus
Sh. Dharamveer
s/o. Late Sh.Nathu Ram
(i) r/o. House no.4834, Laddu Ghati, Phara Ganj,
New Delhi55.
(ii) shop bearing no.5451, Ground Floor, Laddu Ghati
Pahar Ganj, New Delhi55. .......Respondent
ORDER
19.08.2011
1. Vide this order, I shall dispose of the application on behalf of respondent for grant of leave to appear and contest the present eviction petition under section 25B(4) of Delhi Rent Control Act.
2. Brief facts which are relevant for the disposal of present application are that petitioner has filed the present eviction petition E36/2009 1/15 under section 14(1) (e) read with section 25B of the Delhi Rent Control Act against the respondent on the averments that originally, the grandfather of respondent was inducted as tenant by father of petitioner in one shop at ground floor bearing no.5451, Laddu Ghati, Pahar Ganj, New Delhi55. The petitioner and his one deceased brother Sh.Vijay Singh inherited the property from their father Late Sh.Ram Singh who also inherited the same from his father Late Sh.Mange Lal Saini. After death of grandfather of respondent, his son Sh.Nathu Ram inherited the tenancy rights and after the death of Sh.Nathu Ram, his son the respondent inherited the tenancy rights.
It is further averred that tenanted shop is bonafidely required by the petitioner for his own use. He is a TV mechanic and since, 1988, he had been carrying on contract work, few years with M/s. M.M. Electronics, few years with M/s. Humraj Electronics and some time with PBL Electronics. As petitioner does not have any shop, he has, for the last 4 years, been attending the complaints of the TV defects from door to door. Since, petitioner is above 45 years of age, it is not possible for him to run here and there carrying the heavy bag of tools and instruments. He requires the suit shop bonafide for his own use for running the TV workshop which is the only source of his livelihood and the livelihood of other members of his family and the family of his brother late Sh.Vijay Singh. He has E36/2009 2/15 no other reasonable suitable accommodation for the said purpose.
3. In the leave to defend application supported by affidavit, respondent contended that he has become the owner of the property in dispute by way of adverse possession as petitioner filed a complaint to the police station Pahar Ganj, Delhi on 11.09.1997 admitted that respondent being an unauthorized occupant. It is further contended that petitioner is neither landlord nor the owner of the property in dispute. It is further contended that heirs of Sh.Vijay Singh have not been impleaded as party.
The respondent contended that petitioner has sufficient accommodation to meet his bonafide requirement. It is assailed that the petitioner is carrying on his business of T.V. Repair in the room measuring 9'.6" X 10' which opens towards the Gali. The business of petitioner is not a sale business and it is a TV repair business. The accommodation available to the petitioner has not been disclosed in the site plan filed by the petitioner and the site plan filed by respondent is correct as per site. The petitioner has not filed any site plan of property no.5375 and 4865. The petitioner is having one vacant shop in property no.5375 as reflected in site plan filed by respondent. The petitioner has not disclosed as to how he is using the remaining accommodation represented in the site plan filed by E36/2009 3/15 petitioner. It is further contended that the petitioner has not disclosed all the properties available to him.
4. In the counter affidavit, the petitioner has denied all the contentions raised by the respondent and reiterated the averments made in the petition. It is submitted by the petitioner that he never filed the alleged complaint dated 11.09.1997 to the police station, Pahar Ganj, Delhi against the respondent. It is submitted that the site plan filed by respondent is false. It is submitted that remaining accommodation available with petitioner is being used as residence for himself, his family members and the members of the family of his deceased brother Sh.Vijay Singh. There is no other shop in suit property. The property bearing no.5373 does not belong to the petitioner or his brother as the same belongs to the heirs of the uncles of the petitioner Late Sh.Daya Ram and Late Sh.Chet Ram. It is submitted that a partition amongst three brothers took place during their lifetime in respect of properties left by their father Sh.Mange Lal and accordingly, the property no.5373 fell to the share of Late Sh.Daya Ram and Late Sh.Chet Ram while the suit shop and property bearing no.4865 fell to the share of father of petitioner.
5. I have already heard the arguments on the application E36/2009 4/15 and gone through the material available on record carefully.
6. My findings with respect to objections are as follows:
7. The first objection is that petitioner is neither landlord nor the owner of the property in dispute.
The petitioner has averred that he has become the owner and landlord qua the respondent in respect of suit property by operation of law. It is submitted that grand father of petitioner Sh.Mange Lal was the owner of the property in question and a partition amongst his children took place during their lifetime and the property no.4865 and suit shop fell into the share of father of petitioner. Hence, it is submitted that after death of his father, the petitioner alongwith his deceased brother become joint owners of the said property.
The petitioner has placed on record the certified copy of registered partition deed dated 31.12.1959 which is in Urdu and translated copy of same in Hindi is placed on record. From the perusal of this partition deed, it is clear that a partition way back in the year 1959 took place between the children of grandfather of petitioner and suit shop and property bearing no.4865 fall into the share of Sh.Ram Singh, father of petitioner. Hence, it is clear that E36/2009 5/15 after death of Sh.Ram Singh, petitioner alongwith his deceased brother become the joint owners of the property in question by operation of law.
The respondent while raising the objection that petitioner is not his landlord, has failed to disclose as to who is the landlord of the premises in question. A mere bald allegation is not enough. He merely taken the stand that he become owner of the property in question by way of adverse possession as petitioner filed a complaint to the police station Pahar Ganj, Delhi on 11.09.1997 admitted that respondent being an unauthorized occupant. The petitioner has denied the same by submitting that he has not filed any such complaint dated 11.09.1997. The respondent has placed on record the copy of said complaint dated 11.09.1997. From the perusal of same, it is clear the grandfather of respondent Sh.Giasi Ram was a tenant in the suit shop and after his death, his son Nathu Ram came into occupation. His tenancy was terminated in the lifetime and Nathu Ram died about 12 years back and then his son Dharamvir (respondent) came into unauthorized occupation. It is pertinent to mention here that respondent has not raised any objection with respect to fact mentioned in the said letter that one Giasi Ram was a tenant in respect of one room (shop) on the ground floor bearing house no.4865 shop no.5451, Ladoo Ghati, Pahar E36/2009 6/15 Ganj, New Delhi. Hence, it is clear that grandfather of respondent has been induced as tenant by father of petitioner Sh.Ram Singh. From the perusal of said complaint, it is further clear that father of petitioner claimed respondent in unauthorized occupation of tenanted shop as he terminated the tenancy during life of his father. Therefore, respondent cannot be termed as owner by way of adverse possession while he become a statutory tenant under the father of petitioner after termination of tenancy of his father by Sh.Ram Singh, father of petitioner. The said letter/complaint dated 11.09.1997 filed by respondent itself speaks against the respondent.
It may be seen that a tenant is remain a tenant and he had no right to raise any objection regarding the ownership of landlord over the tenanted premises. Section 116 of the Indian Evidence Act,1872, creates an estoppal of tenant from denying the title of the landlord. In a suit for eviction the tenant can hardly question the ownership of the landlord in the face of the provisions of Section 116 of the Evidence Act. Moreover, it is well established proposition of law that it was not the concern of the tenant as to how the landlord acquired the property or whether the sale deed in their favour was valid one or not. In case titled as Ramesh Chand vs. Uganti Devi cited as 157(2009) Delhi Law Times 450 it has been held by the Hon'ble Delhi High Court in para no.7 that "It is settled E36/2009 7/15 preposition of law that in order to consider the concept of ownership under Delhi Rent Control Act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the court is that the landlord had been receiving the rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under section 14(1)
(e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord."
Hence, the objections raised by the respondent with respect to petitioner not being owner/landlord, are rejected.
8. The second contention of respondent is that heirs of Sh.Vijay Singh have not been impleaded as party. I am not satisfied by this contention of the respondent. It is an admitted fact that said brother Sh.Vijay Singh was expired and he was also one of the co owners. In my opinion, petitioner is not under obligation to implead the coowners/legal heirs of deceased Sh.Vijay Singh as it is well established proposition of law that eviction petition filed by one of the E36/2009 8/15 coowner is maintainable. I am supported by the judgment in case titled as Mohd. Aslam & Ors. vs. Mohd. Ajmal & Ors., 159(2009) Delhi Law Times wherein it has been held that a coowner can maintain an action for eviction unless the other coowners object. In the present case, it has not been shown that there was any objection raised by the other coowners with respect to filing of present eviction petition. I am also supported by the judgment in case titled as K.C. Agarwal vs. Hardip Singh cited as 2005(I) RCR 251 wherein it has been held by the Hon'ble Delhi High Court that Co owner whether a landlord A coowner is owner of premises and deemed to be landlord for purposes of Section 14910 (e) of the Act It is not for the tenant to challenge the inter se arrangement of owners as to how they should manage the property so long as there is no dispute between the owners themselves, no advantage can be taken by the tenantAn owner/coowner is a landlord within the meaning of Section 2(e) of the Act and a landlord/ owners within the meaning of Section 14(1) (e) of the Act.
Moreover, the petitioner has not denied that he and his deceased brother became the coowners of the property in question after the death of their father.
In view of above, the objection raised by respondent is dismissed and it held that the present petition filed by the E36/2009 9/15 petitioner being one of the coowner is maintainable.
9. The respondent next contended that petitioner has sufficient accommodation to meet his bonafide requirement.
The respondent assailed that petitioner is carrying on his business of TV repair in the room measuring 9'.6'' x 10' which opens towards the gali. It is further submitted that in site plan the petitioner has represented two toilets adjacent to room measuring 9'.6'' x 10' while the fact is that only one toilet and a galary of 3' wide adjacent to that gallery from one side and toilet from other side there is one shop measuring 7'x9' as represented in the site plan filed by respondent. I have seen the both the site plan of property no.4865 and 5451 filed on record by the rival parties and found that there is no dispute with respect to location of rooms, space etc. in first floor of the said property. The only dispute is with respect to back portion situated on the ground floor of said property. The petitioner has shown one room measuring 96''x10'0'', passage 3'6'' wide and two toilets measuring 3'6''x4'0''each in the back side of said property while respondent has shown one shop measuring 9'.6'' x 10', passage (measurement not mentioned); one shop measuring 7'x9.0 and one toilet 3'.6''x4'.0''. The respondent has shown one shop measuring 9'.6'' x 10' while in leave to defend, respondent has E36/2009 10/15 admitted that there are two rooms opening in gali and out of which, one is in possession of petitioner from where he is carrying on his TV repair business. If as per respondent, the space measuring 9'.6'' x 10' is a room then why he has shown the same as shop in the site plan filed by him. Moreover, the respondent has not filed any document/photograph to show that petitioner is carrying on his business TV repair from the said alleged shop.
With respect to space measuring 7'x9', counsel for petitioner has argued that no such shop is existed there while two toilets measuring 36''x4'.0'' each and a passage measuring 3'.6'' wide existed over there. The respondent contended that space measuring 7'x9' is a shop. I am of the considered opinion that respondent himself assailed in the leave to defend application that said space is a room while in the site plan, he has shown said space measuring 7'x9' as shop. Moreover, the respondent has failed to file any document/photograph to show that said space measuring 7'x9' is a shop. Hence, it is held that site plan filed by respondent is not reliable.
The respondent has further contended that petitioner has not disclosed as to why the inner room measuring 17'x10' is not appropriate for the TV repair business. I am not satisfied with the contention of the respondent as it is not for a tenant to dictate the E36/2009 11/15 terms to the landlord as to how and in what manner he should adjust himself, without calling upon the tenant to vacate a tenanted premises and landlord is best judge of his requirement. I am supported by judgment of Hon'ble High Court in case titled as Kishan Lal vs R.N. Bakshi, 169 (2010) Delhi Law Times 769. Moreover, the said space is a room and not a shop which can be used by the petitioner to meet his start his own business.
The respondent also contended that petitioner has interest and share in property no.5375, Laddo Ghati, Paharganj, Delhi which is left by his grandfather. From the certified copy of partition deed dated 31.12.1959 placed on record, it is clear that said property bearing no.5375 fell into the share of uncles of petitioner i.e. Sh. Chet Ram and Sh.Mange Ram. Hence, contention of respondent that petitioner has interest and share in the said property bearing no. 5375, does not survive and site plan filed by respondent with respect said property cannot be considered.
The respondent also contended that petitioner has interest and share in property no.4865 and property no.5451 where the tenanted shop is situated. As held above, the site plan filed respondent is not reliable. From the site plan filed by petitioner, it is clear that there is no other available shop in the above mentioned property except the tenanted shop which can be used by the E36/2009 12/15 petitioner to met the bonafide requirement and other accommodation has been used by the petitioner as residence for himself, his family members and members of family of his deceased brother Sh.Vijay Singh.
The respondent also contended that petitioner's business is not a sale business and it is a TV repair business and hence, petitioner does not require the shop at all. I am not satisfied with the contention of respondent as even for doing the work of repair, the shop is required and the respondent has not shown any cogent reason to substantiate his contention.
It is further contended that the petitioner has not disclosed all the properties available to him. The petitioner in the petition has clearly averred that he has no other reasonably suitable accommodation to meet his bonafide requirement. In my opinion, once the petitioner himself admitted that he has no other reasonable suitable accommodation to meet his bonafide requirement then he is under no obligation to disclose the same.
Besides above, if petitioner wants the tenanted shop and the tenanted shop suits to him then this Court cannot compel the petitioner to shift to another premises which is not suitable to him. Moreover, it cannot be the object of the Rent Control Law to compel the landlord to shift to different premises so as to permit the tenant to E36/2009 13/15 continue to live in the tenanted premises.
In view of above, it is held that requirement of petitioner is bonafide and he has no other reasonable accommodation to meet his bonafide requirement. The contentions of respondent in this regard are dismissed.
10. In Nem Chand Daga v. Inder Mohan Singh Rana, 94 (2001) DLT 683 it was held that before leave to defend is granted, the respondent must show that some triable issues which disentitled the applicant from getting the order of eviction against the respondent and at the same time entitled the respondent to leave to defend existed. The onus is prima facie on the respondent and if he fails, the eviction follows.
11. Considering, the whole facts and circumstances, I am of the view that petitioner has completely satisfied this Court about his bonafide need and that besides tenanted premises, he has no other reasonably suitable accommodation. On the other hand, the respondent has failed to reveal any fact which could raise any triable issue. Therefore, petitioner is entitled for eviction of respondent with regard to the tenanted premises.
E36/2009 14/15
12. Accordingly, the application for leave to defend is dismissed and eviction order is hereby passed in favour petitioner and against the respondent with regard to tenanted premises i.e. one shop at ground floor bearing no.5451, Laddu Ghati, Pahar Ganj, New Delhi55 as shown in red colour in the site plan exhibited today as Ex.X. It is made clear that this order will not be executable till expiry of six months from today. File be consigned to record room.
Announced in open court LALIT KUMAR
on 19th August, 2011 CCJcumARC(Central)
THC: DELHI
E36/2009 15/15