Delhi District Court
Om Prakash vs Mohd. Hanif on 22 November, 2016
IN THE COURT OF SH. SAURABH PARTAP SINGH LALER,
SCJ-Cum-RC, (NE) KARKARDOOMA COURTS, DELHI
CIS/E No.: 7450/2016
Date of Decision : 22.11.2016
OM PRAKASH
S/o Sh. Udho Ram
R/o H. No. B-175, New Seemapuri
New Delhi-1100095
........ Petitioner
Through Sh. Sanjeev Kumar
Advocate
VERSUS
MOHD. HANIF
S/o Sh. Magan Sheikh
R/o C-126, New Seemapuri
Delhi-110095
...... Respondent
Through Sh. M.K. Rajesh
Advocate
J U D G M E N T
(Under Section 14(1)(e) of Delhi Rent Control Act, 1958)
1. PETITION 1.1. The present petition has been filed by the petitioner Om Prakash against respondent Mohd. Hanif on the ground that property was let out to him on 01.05.1998 as per written agreement dated 12.05.1998 on monthly rent of Rs.2,200/-, after the said property was purchased by the petitioner from respondent Mohd. Hanif on 23.04.1998 for an amount of Rs.1,75,000/-.
1.2. Petitioner submits that he is presently residing on rent and has a family of 7 persons including himself, therefore, he requires the tenanted premises for residence.
Om Prakash Vs. Mohd. Hanif Page 1 of 162. WRITTEN STATEMENT 2.1. The respondent in the written statement has categorically denied the existence of relationship of landlord and tenant between the parties and has referred to an earlier judgment under Section 14 (1) (a) of Delhi Rent Control Act wherein it was observed by the Ld. Additional Rent Controller that the petitioner had failed to prove the existence of relationship of landlord and tenant between the parties. 2.2. The respondent has also denied the fact that he had sold the property to the petitioner on 23.04.1998 for an amount of Rs.1,75,000/-, rather he has alleged that the respondent had borrowed some amount from the petitioner in the year 1996 which was repaid between 1996-1999 and at that time petitioner had obtained signatures of respondent on blank papers/blank stamp papers on the pretext that the said documents are for security for the loan advanced by petitioner to the respondent.
2.3. As regards bonafide requirement the respondent has submitted that petitioner owned two properties in Delhi i.e. B- 364, Near Dispensary, New Seemapuri, Delhi and B-178, Near Mandir, New Seemapuri, Delhi and as such the petitioner does not require the property in question for his residence.
3. Leave to defend application was filed by the respondent and same was allowed by Ld. Predecessor of this court vide order dated 11.09.2012.
4. In order to succeed in a petition for eviction filed under section 14(1)(e) of the Delhi rent Control Act the petitioner must establish that:-
a) That he has no other suitable accommodation.Om Prakash Vs. Mohd. Hanif Page 2 of 16
b) That he is the owner and landlord in respect of the tenanted premises.
c) That he requires the premises bonafide for himself or for any member of his family dependent upon her.
JUDICIAL RESOLUTION
5. RELATIONSHIP 5.1. In order to prove the relationship between the parties, the petitioner has heavily relied upon the rent agreement Ex. PW 1/1 dated 12.05.1998, executed between the parties with respect to creation of tenancy qua the property in dispute. 5.2. The said agreement was put to the respondent in his cross examination and he has categorically admitted his signatures on the document at point A-1. The relevant portion of his testimony is "Ex. PW 1/1 bears my signatures at point A-1".
5.3. The said admission of the respondent in his cross examination is contrary to the suggestion given to the petitioner in his cross examination with respect to the said document i.e. "It is wrong to suggest that the respondent never executed the rent agreement Ex. PW 1/1". 5.4. It may be noted that at the time of exhibiting of document Ex. PW 1/1, in examination in chief, no objection with respect to mode of proof was raised by the respondent and subsequently in the cross examination, as stated earlier, the respondent has himself admitted his signatures on the loan agreement.
5.5. The said rent agreement Ex. PW1/1 is the only document that petitioner has been able to produce to prove the relationship of landlord and tenant between the parties as there are no rent receipts of the rent paid by the respondent Om Prakash Vs. Mohd. Hanif Page 3 of 16 to the petitioner, though it is stated in para 18 (a) of the petition that the respondent paid rent upto 30.06.1998. 5.6. The question before the court is Whether the said rent agreement upon which the respondent admits his signatures proves the relationship of landlord and tenant between the parties?
5.7. It has been strongly argued by ld. Counsel for respondent that the said rent agreement was also relied upon by the petitioner in an earlier eviction petition under Section 14 (1)
(a) of DRC Act and even after taking into consideration the said rent agreement, it was observed by the ld. ARC Ms. Kamini Lau on 29.07.2005 that the petitioner failed to prove the existence of landlord and tenant relationship between the parties. The relevant portion of the said judgment is reproduced as under:-
"RW-1 has in his cross examination admitted his signatures on all the documents but he has stated that he had signed the blank documents and he does not know who had filed the contents of the same. He has denied that the petitioner paid Rs.50,000/- as earnest money regarding the consideration of the premises. He has specifically denied having supplied the keys of the house in dispute to the petitioner. He has denied that he has started residing as tenant or that he had executed a Rent Agreement. He has further admitted his signatures and has stated that he had signed on blank papers but he did not executed any Rent Agreement. He has denied that the Rent Agreement was executed for 11 months.........................There is a presumption of correctness in favour of the official witness from the Govt. deaprtment. In order to rebut the same the petitioner should have produce some documentary record to show that the property in question does not fall under the Slums & JJ Department. Moreover, the petitioner has not been able to prove the Rent Deed/Rent Agreement dated 12.05.1998. Since the matter in respect of correctness of the documents is still pending before the competent court/Civil Court, hence this court is not going into the aspect of title in respect of the property. However, since the respondent has denied the existence of the relationship. It was necessary for the petitioner to have prove the Rent Agreement dated 12.5.1998 by calling the attesting witness to the same, which has not been done. Also there is no evidence on record to show the creation of Om Prakash Vs. Mohd. Hanif Page 4 of 16 tenancy between the parties as admittedly no rent receipts has been issued by the petitioner to the respondent at any point of time. Hence, in view of the above background I hereby hold that there does not exists landlord tenant relationship between the parties as required under the Delhi Rent Control Act as no permission has been obtained from the competent authority to file the present petition. 5.8. On the other hand, it was argued by the petitioner that the said judgment dated 29.07.2005 was set aside by Rent Controller Tribunal (RCT) by order dated 24.01.2006 and the matter was remanded back to the Trial Court with direction to record evidence on the issue of applicability of Slum Area (Improvement and Clearance) Act and that after the said remand order, the court of Ld. ARC by order dated 13.08.2009 dismissed the petition of the petitioner on the ground that permission was not obtained by the petitioner from competent authority (slum) for filing the present petition. 5.9. Therefore, as per the petitioner, the judgment of the ld. ARC dated 29.07.2005, being set aside by ld. RCT, cannot be relied upon to decide the relationship of landlord and tenant between the parties.
5.10. The submissions of the petitioner with respect to the fact that the said judgment was set aside by ld. RCT is found correct and once the said judgment has been set aside, it would not be appropriate for the court to solely rely upon the said judgment in order to decide the relationship between the parties.
5.11. Coming to the evidence on record with respect to the relationship, as stated earlier there is only one document on record i.e. rent agreement Ex. PW 1/1. The said document was exhibited in the testimony of petitioner on 23.01.2014 and questions with respect to the said document were also put to the petitioner but subsequently in the affidavit of the Om Prakash Vs. Mohd. Hanif Page 5 of 16 respondent dated 06.12.2015, the respondent has not specifically denied the fact that the said rent agreement was got signed by the petitioner from the respondent under misrepresentation that the same was for the purpose of security for the loan taken by the respondent. 5.12. However, on the other hand, the petitioner has also not examine any witness to the agreement in order to prove that the rent agreement not only bears the signature of respondent but is also duly executed by the respondent. 5.13. The petitioner has also not examined the Notary Public in order to prove the attestation and in his affidavit the petitioner has not stated that the said rent agreement was executed by the respondent after understanding and agreeing to the contents thereof.
5.14. Contents of the document are not automatically proved only because it is proved that the said document is signed by a particular person. Signing a document and executing a document are two different concepts in law, as execution of a document means, signing, sealing and delivery of a document. Execution of a document is something from mere signing of the document. Execution means something more than mere signing and includes delivery and signing in the presence of witnesses, where they are necessary. Execution of a document means that executant signed the document only after contents thereof were understood by the executant before he put his signatures thereto.
In the facts of the present case the evidence which could have been produced in order to prove the execution of the rent agreement Ex. PW 1/1, was the oral testimony of the witness to the said agreement which has not been brought on Om Prakash Vs. Mohd. Hanif Page 6 of 16 record by the petitioner.
5.15. However, at the same time the testimony of the respondent can only not be said to be very reliable as regards non execution of the rent agreement, because the respondent not only denied execution of the rent agreement, rather, he also denied execution of registered general power of attorney Ex. PW 1/2 and registered Will Ex. PW 1/3. The respondent has admitted his signatures on the registered GPA and registered Will but in his cross examination he denied the fact that he visited the office of Sub-Registrar on 23.04.1998 for the execution of the said documents. 5.16. There is one another issue involved in the rent agreement Ex. PW 1/1 and that is the capacity of the petitioner to enter into an agreement with the respondent. As per the documents Ex. PW 1/2 to Ex. PW 1/8, the petitioner is an attorney/agent of the respondent in view of the registered GPA Ex. PW 1/2 and being an agent he can transact with respect to the subject matter of the agency (as incorporated in GPA), with any third person/party excluding the respondent/principal.
5.17. It may be noted that as per Section 182 of the Contract Act an agent can represent the principal in dealing with third person but appointment of an agent does not preclude the principal from acting himself in the business of agency, unless there is an express prohibition to that effect. In the registered GPA Ex. PW 1/2 there is no such express prohibition which may preclude the respondent/principal from acting himself in the business of agency. Hence, despite the said documents Ex. PW 1/2 to Ex. PW 1/8 the respondent being the principal in the agency created by the registered GPA Ex. PW 1/2 was Om Prakash Vs. Mohd. Hanif Page 7 of 16 competent enough to enter into lease deed/rent agreement and the rent agreement between the parties is thereof no consequence, as the said rent agreement has been actually executed by the petitioner as an agent of the principal/respondent with the respondent. 5.18. Therefore, in the opinion of the court, the petitioner has failed to prove that he had the capacity to let out the premises to the respondent on the basis of documents Ex. PW 1/1 to Ex. PW 1/8 and that by virtue of the rent agreement Ex. PW 1/1 the respondent became tenant under the landlordship of the petitioner.
6. OWNERSHIP
6.1. The ground of bonafide requirement for recovery of possession is only available to a landlord, who is also owner of the property, because, the definition of 'landlord' in Section 2(e) is wide enough to include a person who is not the owner of the property.
6.2. The concept of ownership and possession are two distinct concepts in jurisprudence and the right to possession is only one of the bundle of rights comprised in the term 'ownership'. 6.3. In Shanti Sharma Vs. Ved Prabha AIR 1987 SC 2028, it was observed by the Hon'ble Apex Court that the legislature had used the word 'owner' in Section 14 (1) (e) of DRC Act in a narrow sense. Hon'ble Apex Court explained the meaning of the word 'owner' in following words:-
........In this context, the phrase 'owner' thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use, he should be entitled to an order or decree for eviction, the only thing necessary for him to prove is bona fide requirement and that he is the owner thereof. In this context, what appears to be meaning of the term 'owner' is vis-a-vis the tenant i.e. the owner should be something more than the tenant. Admittedly Om Prakash Vs. Mohd. Hanif Page 8 of 16 in these cases where the plot of land is taken on lease the structure is built by the landlord and admittedly he is the owner of the structure. So far as the land is concerned he holds a long lease and in this view of the matter as against the tenant it could not be doubted that he will fall within the ambit of the meaning of the term 'owner' as is contemplated under this section."
6.4. In view of the aforesaid judgment, the question before the court is: Whether the title of the petitioner is something more than that of the respondent?
6.5. In the opinion of the court, in the facts of the present case, it cannot be said that the petitioner has better title as compared to the respondent for the following reasons:-
a) Because the petitioner in para 18 (a) of the petition as well as in para 2 of his affidavit exhibit Ex. P-1 has admitted that prior to 23.04.1998, the respondent was the owner of the property.
b) Because it is an admitted fact that no sale deed as per Section 54 of Transfer of Property Act for transfer of ownership in exchange of consideration was ever executed by the respondent in favour of the petitioner.
c) Because even if the title documents dated 23.04.1998 are presumed to have been proved, still the said documents do not confer ownership rights upon the petitioner as registered general power of attorney Ex. PW 1/2 merely creates an agency in favour of the petitioner, which in view of the consideration mentioned in the agreement to sell Ex. PW 1/5, is irrevocable in view of Section 202 of the Contract Act. However, Section 202 of the Contract Act or any other Section in the Contract Act does not state that creation of agency with respect to an immovable property for consideration would make the agent, an owner of the property. As per Section 182 of the Contract Act an agent Om Prakash Vs. Mohd. Hanif Page 9 of 16 is merely a person employed to do any act for another or to represent another in dealings with third persons. An agent merely represents principal who has created an agency in favour of the agent and even by virtue of Section 202 of the Contract Act, the agent cannot take place of the principal and thereby become owner of movable or immovable property with respect to which the agency was created. The said irrevocable agency can be used by the agent to transact with any person in the world on behalf of the principal, but he cannot use the said agency to transact with the principal himself. The very definition of agency in Section 182 of the Contract Act uses to the words 'third persons', which means that the agent can do any act for and on behalf of the principal in dealings with third persons (which does not include the principal himself).
d) Because the Will Ex. PW 1/3, even if presumed to be proved (though not proved during evidence as attesting witness to the Will was not examined as per Section 68 of the Indian Evidence Act), does not confer any title upon the petitioner as long as the testator / respondent is alive.
e) Because the agreement to sell Ex. PW 1/5, even if presumed to be proved, merely confers the right to enforce the said contract or to seek damages if the contract is breached, as well as protection to the possession of the petitioner under Section 53-A of Transfer of Property Act.
From the pleadings and the evidence led by the parties, it can be inferred that till date no suit for specific performance of the agreement Ex. PW 1/5 or for seeking Om Prakash Vs. Mohd. Hanif Page 10 of 16 damages for breach of the said contract has been filed by the petitioner against the respondent, though the first eviction petition under Section 14 (1) (a) of DRC Act was filed in the year 2000, in which the respondent had categorically denied the execution of the agreement to sell Ex. PW 1/5. The limitation to file the aforesaid suit has also expired since then and as on date the said agreement to sell Ex. PW 1/5 can only be used to protect the possession of the petitioner under Section 53-A of Transfer of Property Act.
At this stage, it would be relevant to reproduce Section 53-A of Transfer of Property Act as it was in the year 1998. It is reproduced as under:-
"Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or nay part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof. Section 53-A of Transfer of Property Act is only meant to bring about a bar against enforcement of rights by a seller in respect of property of which the purchaser had already taken possession, but it does not give any right to the Om Prakash Vs. Mohd. Hanif Page 11 of 16 purchaser to claim possession or to claim any other rights on the basis of an agreement to sell. This section is only available as a defense to a purchaser and not as conferring a right on the basis of which the purchaser can claim rights against the seller.1 It is well settled that the plea of part performance as incorporated in Section 53-A of TPA, which was inserted in 1929, can be used as a shield and not as a sword. This section does not confer active title on the transferee on possession, it only imposes a statutory bar on the transferor and confers a right on the transferee to defend his possession. In the present case, the petitioner has claimed to be the owner of the property in para 18 (a) of the petition on the basis of the agreement to sell Ex. PW 1/5 and he has filed the present petition under Section 14 (1) (e) of DRC Act on the ground that being owner and landlord of the property he has right to evict the respondent for his bonafide requirement. The petitioner is trying to use agreement to sell Ex. PW 1/5 as a sword and not as a shield as he through the present petition is trying to claim a right against the respondent. The Indian Law in this regard is a bit different from the English Law, as in India a party can use part performance as a shield only to defend the possession and not for any other purpose. 2 Therefore, in the opinion of the court, even the agreement to sell does not confer rights of ownership in the petitioner so as to evict the original allottee / respondent under Section 14 (1) (e) of DRC Act.
1 Delhi Motor Company Vs. U.A. Basukar AIR 1968 SC 794 2 Pramod Kumar Das Vs. Dantmara Tea Compamy Ltd. (1940) 66 IA 293 relied upon.Om Prakash Vs. Mohd. Hanif Page 12 of 16
f) Because possession letter Ex. PW 1/8, Receipt Ex. PW 1/7 and Affidavit Ex. PW 1/6 even if presumed to be proved do not confer any right, title or interest in the suit property in favour of the petitioner. The said documents may be relevant in a suit for specific performance or damages but the said documents do not confer ownership upon the petitioner so as to evict the original allottee / respondent. It may be noted here that the receipt Ex. PW 1/7 is not registered as per Section 17 (1) (c) of Registration Act and therefore, the same can even otherwise be not read into evidence against the respondent in view of Section 49 of the said Act. 6.6. Aforesaid observations are summarized as under:-
Petitioner Om Prakash Respondent Mohd. Hanif Not the original allottee of the Admittedly original allottee of property property No independent title, claiming title Independent title being direct through respondent. allottee.
Registered GPA and Registered Allottee of the property Will do not confer title even alongwith Agreement to Sell, Affidavit, Receipt and Possession Letter.
Aforesaid documents merely However no suit for specific confer right to seek execution of performance filed till date and the sale deed. limitation to file such suit has already expired despite litigation between the parties since the year 2000.
Aforesaid documents protect the Petition is filed under Section 14 possession of the petitioner under (1) (e) of DRC Act and one of the Om Prakash Vs. Mohd. Hanif Page 13 of 16 Section 53-A of Transfer of requirements of the said section is Property Act, but the said provision that the petitioner should be owner cannot used as a sword to obtain of the property or should have possession. It can only be used better title to the property in as shield to protect possession. comparison to the respondent. In Section 53-A of TPA does not the present case the title of the make the title of the petitioner respondent is better than that of better than that of the respondent. the petitioner.
6.7. Consequently, the petitioner has failed to prove that his title is something more than that of the respondent. The second ingredient of Section 14 (1) (e) of DRC Act is missing in the present petition.
7. BONAFIDE REQUIREMENT AND ALTERNATIVE ACCOMMODATION
7.1. The respondent has challenged the requirement of the petitioner on the ground that the petitioner is owner of two properties in Delhi i.e. B-364, Near Dispensary, New Seemapuri, Delhi-95 and B-178, Near Mandir, New Seemapuri, Delhi-95.
7.2. The petitioner in this regard testified in para 14 of his affidavit Ex. P-1 as under :-
"That father of the petitioner purchased the property bearing no. B-364 near dispensary New Seemapuri Delhi-110095 and after the death of father and mother of the petitioner, Petitioner and his deceased brother namely late Sh. Chander Pal sold their respective shares of above said property to Sh. Jitender and Sh. Akbar Ali S/o Sh. Rehmat Ali R/o L-43, Sunder Nagari Delhi 6-7 year ago. It is pertinent to mention that the property bearing no. B-364 near dispensary New Seemapuri Delhi-110095 was the commercial property consisting two shops on the ground floor and one godown on the first floor. It is further submitted that the deceased brother of petitioner namely late Sh. Chander Pal was the allotee of the property bearing no. B-178 near Mandir New Seemapuri Delhi-110095 and thereafter the deceased rother of petitioner namely late Sh. Chander Pal sold the above said property to the petitioner and after that his legal heirs and petitioner sold out the property to Sh. Pradeep kumar S/o Late Sh. Kanhaiya Lal and Sh. Mamtesh Kumar Arya S/o Sh. Daya Ram Arya Om Prakash Vs. Mohd. Hanif Page 14 of 16 R/o H.No.-20/18, Chet Ram Gali, Gali No.-2, Maujpur Delhi- 110053 four year ago and petitioner and the family of the deceased brother vacated the property. The petitioner is residing in B-175 New Seemapuri Delhi-110095 as a tenant for last four years and family member of the deceased brother of petitioner namely late Sh. Chander Pal are residing in property bearing no. B-177 New Seemapuri, Delhi-110095. 7.3. In the cross examination of the petitioner there is absolutely no question or suggestion with respect to the aforesaid two property bearing No. B-364 and B-178, therefore, the testimony of the petitioner as regards the aforesaid two properties remains unchallegned in his cross examination.
7.4. The respondent who testified after the evidence of the petitioner, failed to clarify as to how the petitioner is the owner of the aforesaid two properties, despite his specific testimony in this regard in para 14 of his affidavit Ex. P-1. The respondent in his affidavit, which was filed approximately after 2 year from the date of filing of the affidavit of the petitioner, has merely stated as under:-
"That the deponent says that as per his knowledge the petitioner owned two properties in Delhi. The addresses of the properties are B-364, Near Dispensary, New Seemapuri, Delhi-95 and B-178, Near Mandir, New Seemapuri, Delhi-95."
7.5. Even in his cross examination when specific suggestions were given to him with respect to the aforesaid two properties, he merely denied the said suggestions and did not disclose voluntarily even at that stage as to how the petitioner is the owner of the aforesaid two properties. The cross examination of respondent in this regard is as under:-
"It is wrong to suggest that the petitioner does not have any alternate, reasonable and suitable residential accommodation to answer the needs in question. It is wrong to suggest that properties no. B-364 and 178 are not alternate suitable accommodations. It is wrong to suggest that the petitioner is not the owner of the property No. B-364 and belonged to his father, which was sold out after his death. It is wrong to suggest that property no.B-364 was never residential. It is Om Prakash Vs. Mohd. Hanif Page 15 of 16 wrong to suggest that property no.B-178 had no concern with the petitioner and belonged to his brother. It is wrong to suggest that the petitioner was only the care taker of property no.B-178 after the death of his brother and the same had been sold by the LRs of his brother and petitioner. It is wrong to suggest that the petitioner is residing in a rented accommodation. It is wrong to suggest that I am deposing falsely."
7.6. The respondent also examined other two witnesses i.e. RW-2 Mahavir Singh and RW-3 Saroj, but they have not testified with the respect to the aforesaid properties either in their examination in chief or their cross examination. 7.7. Consequently, the respondent has failed to prove that the requirement of the petitioner is not bonafide or that he is not residing as a tenant in property bearing No. B-175, New Seemapuri, Delhi or that he has other reasonably suitable residential accommodation in form of property No. B-364 and B-178, New Seemapuri, Delhi.
7.8. In the opinion of the court, the requirement of the petitioner is bonafide as he is residing in a tenanted premises and he has no other alternative accommodation for the residence of his family which consists of 7 members including himself.
8. Conclusion: As the petitioner failed to prove all the ingredients of Section 14 (1) (e) of Delhi Rent Control Act, hence, the petition is dismissed.
9. File be consigned to Record Room after necessary compliance. Announced in the open Court on 22nd day of November 2016 (S.P.S. LALER) SCJ/RC(NE)/22.11.2016 Om Prakash Vs. Mohd. Hanif Page 16 of 16