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Delhi District Court

Surjeet Kapoor vs Smt. Neelam on 7 February, 2013

In the Court of Sh. Rakesh Kumar­II: Additional Rent controller 
      of East Delhi District at Karkardooma Courts, Delhi.

Eviction Petition No. E­38/04
Unique I.D. No.02402C0057592004

In the matter of:­
Surjeet Kapoor 
S/o Sh. Shanti Lal Kapor,
R/o 18­C, Govind Park, Krishna Nagar,
Delhi­110051.                                                 .....Petitioner

       Versus

1. Smt. Neelam 
W/o Sh. Vijay Arora,

2. Vijay Arora
S/o Sh. Amar Nath Arora,
Both r/o D­18/38, Old Govind Pura, 
Kunj Gali,Near Som Bazar,
Delhi­51.                                                     .....Respondents

Date of institution           : 04.03.2004
Date on which arguments heard : 07.02.2013
Date of decision              : 07.02.2013

     Application for Eviction of Tenant under Section 14(1)(a) of 
                     Delhi Rent Control Act, 1958


JUDGMENT 

1. This is a petition for the recovery of possession of one room, E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 1 of 12 latrine and bath combined on the ground floor in the property bearing no. D­18/38, Old Govind Pura, Kunj Gali,Near Som Bazar, Delhi­110051 (hereinafter referred to as 'the premises') as shown in red colour in the site plan attached, made by the landlord Surjeet Kapoor against the tenants Smt. Neelam & Anr. on the grounds mentioned in clause (a) of the proviso of sub­section (1) of Section 14 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the DRC Act').

2. Brief facts of the case are that the respondents are tenants and the tenancy commenced on 14.09.01 and the respondents are not paying the rent since 14.03.02 and a notice dated 11.12.03 was served upon the respondents requesting to make the arrears of rent but the respondents neither tendered nor paid the arrears of rent and it is prayed by the petitioner to pass an eviction order against the respondents.

3. On notice, the respondents appeared and they filed common written statement wherein it is contended that the petitioner is neither owner nor landlord of the premises in question and the respondent is the owner and in the sole possession of the premises in question. It is submitted that the petitioner is the associate of land grabbers and a case under Section 406, 420, 506/34 is pending in the court of Metropolitan Magistrate and the petition is based on false and frivolous ground. It is submitted that the respondents came into contact E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 2 of 12 with one Sh. Prem Kishore Sharma for a grant of loan and the respondents executed certain documents but the petitioner and his associate with malafide intention to grab the property kept the original documents and these documents were executed for the purposes of loan. All other averment are denied and prayed for dismissal of the petition.

4. The petitioner filed the replication to the written statement wherein he denied the contents raised by the respondents in their written statement and reiterated the averments made in the present eviction application.

5. I have heard counsel for the parties and perused the material available on record carefully. My findings are as follows:­

6. For getting an eviction order under clause (a) of sub section (1) of section 14 of the DRC Act, the petitioner is required to prove:­ I. relationship of landlord and tenant;

II. existence of arrears of rent legally recoverable on the date of service of demand notice;

III.service of notice of demand;

IV. failure of the tenant to pay/render the entire legally recoverable arrears of rent within stipulated period of two months from date of service of demand notice.

7. To prove his case, the petitioner appeared in the witness box as PW1 and he deposed that he purchased the property on E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 3 of 12 14.09.01 and the respondents delivered the physical and vacant possession of the suit property to him and he exhibited the GPA Ex.PW1/A, Agreement Ex.PW1/B, Affidavit Ex.PW1/C, receipt Ex.PW1/D and Will Ex.PW1/E. He deposed that after the registration of the relevant documents, the respondents requested him to let out one room, latrine, bathroom on the ground floor and on their request, he let out the said portion to the respondents on monthly rent of Rs.1700/­ per month excluding electricity and other charges and the tenanted portion has been shown in the red colour in the site­plan Ex.PW1/F. He stated that the respondents have not paid the rent since 14.03.02 despite repeated requests and demands and after that a legal notice was served on 18.12.03 but despite service of the notice, the respondents have neither paid nor tendered the arrears of rent and copy of notice is Ex.PW1/G. He further stated that in examination in chief that the respondents broke open the locks of the room, kitchen on the first floor of the property and stolen three embroidery machines, 500­600 skirts and top, three chairs, three stools etc. and have taken forcible possession of the first floor of the property and report in this regard was lodged under Section 448/380/34 IPC and the same is still pending.

8. Prem Kishore Sharma appeared in the witness box as PW2/A and he deposed that the respondents were the joint owners of the property in question and in the year 2001 both the E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 4 of 12 respondents asked him to sell the property and on their asking, I sold out the property in question to Surjeet Kapoor for a sale consideration of Rs.2 lacs and Surjeet made the payment accordingly and the documents i.e. GPA, agreement, affidavit, receipt and Will were executed and the possession was handed over to the petitioner and ground floor of the property was let out to the respondents on their requests on a monthly rent of Rs. 1700/­ per month and they made the payment to the petitioner for six months and thereafter they stopped making the payment of rent.

9. Dilip Singh, LDC from office of sub­registrar, Geeta Colony appeared as PW3 who deposed that a GPA and a Will was registered with their office.

10. Santosh Kumar, Ahlmad in the court of Sh. Bhupesh Kumar appeared as PW4 who brought the case file titled as State v. Vijay Arora and Smt. Neelam in connection with the case under Section 448/380/34 of IPC Act and exhibited the charge sheet as Ex.PW4/1.

11. To disprove the case of the petitioner, Smt. Neelam Arora appeared in the witness box as R­1 and who deposed that she is in exclusive possession of the property in question and she came in contact with Prem Kishore Sharma for grant of loan on the basis of their house and he assured to grant the loan and thereafter with his associates namely Surjeet Kapoor, Shanti Lal E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 5 of 12 Kapoor, Bakshish Singh, Madan Lal and Jagmohan with their malafide intention suggested her to execute some documents of property and on 14.09.01, the documents were executed for the grant of loan and the documents were executed in good faith but after executing the documents, the petitioner and his associates did not pay Rs.2 lacs and they also kept the original documents and she waiting for long and find no other alternative she and her husband cancelled the GPA and said cancellation of GPA is Ex.RW1/A. She deposed that she also published a public notice in Rashtriya Sahara Hindi Newspaper on 09.11.02 regarding the above said fact and the copy of newspaper is Ex.RW1/B. She stated that she also made a complaint to the sub­registrar, Geeta Colony regarding cheating by the petitioner and his associates and the copy of complaint is Ex.RW1/C. She deposed that after repeated requests and demands, the petitioner did not pay a single penny and a notice was given by the petitioner and reply was sent to that legal notice and same is Ex.RW1/D and find no alternative, a case against the petitioner and his associates under Section 420/506/599/500/34 of IPC Act was filed and FIR in that regard is Ex.RW1/E. She stated that she alongwith her husband are exclusive owner of the property in question and there is no relationship of landlord and tenant between the petitioner and the respondents. In her cross examination, she admitted that the documents were executed for the purposes of loan but she E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 6 of 12 denied that the property in question was sold to the petitioner or she is tenant under the petitioner at a rent of Rs.1700/­ per month since 14.03.02.

12. Vijay Arora appeared in the witness box as RW2/1 and he deposed similar to that of RW1 Smt. Neelam Arora and in the cross examination, he deposed that the property in question was transferred in his name and in the name of his wife in the year 1997 but he denied that property was sold to the petitioner and he also denied that the petitioner as his landlord.

13. The main contention of the petitioner is that he is owner of the property vide document i.e. GPA, agreement, receipt, Will etc. but these documents are not the documents of transfer as it is not sale deed as provided under Section 54 of the Transfer of Property Act. It is held by Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana and Anr., 183(2011) DLT1(SC) as follows:

"Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank MANU/DE/1304/2001 : 94 (2001) DLT 841 that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintended misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 7 of 12 law. "

14. In the light of law, it is clearly declared by Hon'ble Supreme Court in Suraj Lamp's case (supra), the documents relied upon by the petitioner, do not canvey any title or create any interest in the premises in question. In view of the above, the petitioner has failed to prove that he is owner of the property in question.

15. The second ground of the petitioner is that there exist relationship of landlord and tenant and on the other hand, the respondent have contended that they are the owners and there is no relationship of landlord and tenant between them and the petitioner. To prove th relationship between the parties, it is submitted by PW1 Surjeet Kapoor that he is the landlord and the respondents are his tenants but in the cross examination he admitted that he does not know the measurement of the property in dispute and he also does not know the exact date of sending the notice. He stated that he does not know the name of the person who prepared the site­plan Ex.PW1/F. It is submitted by the petitioner that he let out the ground floor at a monthly rent of Rs.1700/­ excluding electricity and other charges but no document has been placed on file by the petitioner to prove that the rate of rent is Rs.1700/­ per month. The petitioner deposed that the respondents have illegally and unauthorizedly broke open the lock of the room, kitchen on the first floor and stolen E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 8 of 12 certain articles and have taken forcible possession of the first floor but the petitioner has failed to specify any date when the respondents took forcible possession of the first floor. If the forcible possession has been taken by the respondents, then the version of the petitioner of letting out the portion to the respondents is falsified and cannot be believed. Registration of FIR by the petitioner has no relevance to the present controversy as it is a case of non­payment of rent and the petitioner has to establish the relationship of landlord and tenant and there is no scope of proving the title.

16. The case of the petitioner is that he purchased the property in question from the respondents on 14.09.01 vide GPA, agreement to sell, Will, receipt etc. and the possession was delivered by the respondents on the very same day i.e. 14.09.01 which is also the day of commencement of tenancy. This version of the petitioner that property was was purchased on 14.09.01, possession was delivered by the respondents on 14.09.01 and the respondents were inducted as tenants on 14.09.01 cannot be believed.

17. The petitioner has admitted in the cross examination that he does not know the measurement of the premises or the rooms and he has not issued the rent receipts. When the petitioner has not issued any rent receipt, he also cannot produce any counterfoil to prove the rate of rent.

18. Respondent no.1 Smt. Neelam has stated that she alongwith her husband is the exclusive owner of the property in question and she came in contact with one Prem Kishore Sharma for grant of loan on the basis of their house and he gave assurance to grant the loan against the property but whatever documents were executed, were executed in good faith for loan and GPA was cancelled on 18.11.12 vide Ex.PW1/A and there is no relationship of landlord and tenant. RW2 has deposed similar to that of RW1. No material contradiction has arisen in the cross examination of RW1 and RW2 and their testimonies were not shaken on any material point. More so, this is not a title dispute and this court has to see only the relationship between the parties, rate of rent, arrears of rent and service of demand on notice.

19. From the above submission, it is clear that the petitioner has failed to prove the relationship between the parties. The petitioner has also not filed any document to prove the relationship and the documents of ownership filed by the petitioner are of no relevance and these documents are not creating any right, title or interest in the property.

20. So far as, service of demand notice and non­compliance of demand notice are concerned, the petitioner has stated that a legal demand notice dated 11.12.03 was served upon the respondents and they have admitted that legal demand notice Ex.PW1/G was served which was duly replied vide Ex.RW1/D. In the reply also, the E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 10 of 12 respondents have denied the ownership and relationship of the petitioner and they claimed themselves as owner. The alleged legal demand notice Ex.PW1/G is defective as it is mainly about the sale of the property to the petitioner by the respondents and the same is not proved as per the Evidence Act as the postal receipts and the AD card are not placed on file.

21. In Hindustan Everest Tools Ltd. v. Shakti Kumar 22 DRJ 1986 (10) it has been held by Hon'ble Delhi High Court in Hindustan Everest's case (supra) as follows:­ "This notice is an unconditional notice terminating the tenancy. It did say that the tenant was in arrears of rent but it did not demand the rent. Proviso (a) requires the service of a "notice of demand for the arrear". The word 'demand' has to be given its ordinary meaning. 'Demand' according to Chambers 20th Century Dictionary (New Edition) means the asking for what is due : the amount of any article, commodity, etc., that consumers will buy : inquiry". According to Webster's Third New International Dictionary it means 'the act of demanding or asking esp. with authority : a peremptory request : the asking or seeking for what is due or claimed as due : the right or title in virtue of which something may be claimed : a thing or amount claimed to be due". Giving the ordinary meaning to the word "demand" and read in the context in which his word had been used the expression 'notice of demand' used in the proviso (a) means a notice asking the tenant to pay the arrears of rent. In other words, the tenant must be called upon to pay the arrears or rent. Low, no doubt, does not require that a demand notice should be in any prescribed form. Particular words are not required to be used but the notice must make a demand of arrears of rent. For making the demand any proper word connoting the demand could be used. A mere statement of arrears without anything more is not sufficient. The main purpose of 'the act' is to protect the tenant from eviction. The requirement of the service of notice of demand in clause (a) is to afford and opportunity to the tenant to pay the arrears of rent within E­38/04 Surjeet Kapoor v. Smt. Neelam & Anr. Page 11 of 12 two months of the service of notice of demand. The purpose could not be achieved only when the demand is made. The tenant must be asked to pay rent or face eviction. In the absence of the demand it cannot be said that the tenant had been given the required opportunity to save his tenancy from the consequences of default by not paying the rent."

22. In view of above, I hold that notice of demand sent by the petitioner to the respondents was not a proper notice of demand as required for seeking eviction under the proviso mentioned in clause (a) of the proviso of sub­section (1) of Section 14 of the DRC Act.

23. For the discussions afore­stated, the petitioner has failed to prove the relationship of landlord and tenant between the parties. The petitioner has also failed to prove that he had served proper notice of demand to the respondents. The petitioner has failed to prove essential ingredients for getting eviction order under Section 14 (1) (a), the DRC Act. The present petition for eviction on the grounds mentioned in clause (a) of the proviso of sub­section (1) of Section 14 of the DRC Act is dismissed.

Announced in the open court (Rakesh Kumar­II) on 07.02.2013 Additional Rent Controller (East) Karkardooma Courts, Delhi.