Delhi District Court
Eviction Petition M. No.18/12 Miraj ... vs . Sh. Mohd. Sharif on 20 March, 2018
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IN THE COURT OF SH. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Eviction Petition No. M-18/12
Unique Case ID no. 59368/16
Sh. Miraz Ahmad
(Now deceased)
Through his LRs namely:
1A. Sh. Noor Ahmad
R/o D-194, Abu Fazal Enclave,
Okhla, New Delhi.
1B. Sh. Irfan Ahmad
R/o 819, Haveli Azam Khan,
Chitli Qabar, Delhi.
1C. Sh. Rizwan Ahmad
R/o 2290, Kucha Chelan,
Darya Ganj, Delhi-110006
1D. Sh. Sultan Ahmed
R/o 854, Haveli Azam Khan,
Chitli Qabar, Delhi-110006
1E. Sh. Furqan Ahmed
R/o 2222, Kucha Chelan,
Darya Ganj, Delhi-110006
1F. Sh. Subhan Ahmed
R/o 2222, Kucha Chelan,
Darya Ganj, Delhi-110006
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif
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1G. Sh. Imran Ahmad
R/o 2222, Kucha Chelan,
Darya Ganj, Delhi-110006
1H. Sh. Rehan Ahmed
R/o 2222, Kucha Chelan,
Darya Ganj, Delhi-110006
1I. Mst. Wasim Ajaz
D/o Late Sh. Miraz Ahmad,
W/o Mohd. Naseem,
R/o 1492, Gali Kasim Jaan,
Ballimaran, Delhi ...Petitioners
VERSUS
Sh. Mohd. Sharif
(Now deceased)
Through his LRs namely:
1A. Ms. Parveen
D/o Sh. Mohd. Sharif
1B. Ms. Nasreen
1C. Ms. Mahjabeen
1D. Ms. Nusrat
Respondents no. (1A) to (1D) are daughters of
Late Sh. Mohd. Sharif
1E. Sh. Zaheer Ahmad
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif
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1F. Sh. Naseer Ahmad
1G. Sh. Nafees Ahmad
1H. Sh. Mohd. Mairaj
Respondent No. (1E) to (1H) are
sons of Late Sh. Mohd. Sharif
R/o 848, Gali Godon Wali,
Haveli Azam Khan,
Bazar Chitli Qabar,
Jama Masjid, Delhi-110006.
Petition u/s 14 (1)(e) r/w section 25-B of Delhi Rent Control Act 1958
Date of institution of the case : 15.09.1988
Date of Judgment reserved : 17.03.2018
Date of Judgment pronounced : 20.03.2018
JUDGMENT
1. This is an eviction petition filed on 15.09.1988 u/s 14(1)(e) r/w section 25-B of the DRC Act by the petitioner Miraj Ahmed (since deceased, now represented through legal representatives) against respondent Mohd. Sharif (since deceased, now represented through legal representatives) on the ground of bonafide requirement for the purpose of residence for himself and his family members.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //4// Petitioner's case
2. It is stated that the deceased petitioner was the owner and landlord and the deceased respondent was a tenant at a monthly rent of Rs.150/- in respect of the tenanted premises which is ground floor of property bearing no. 848, Gali Godonwali, Haveli Azamkhan, Bazar Chitli Qabar, Jama Masjid, Delhi-110006 as shown in the site plan Ex.PW-1/16 filed with the eviction petition. It is averred that the premises was let out by a previous owner and it was purchased by the deceased petitioner in the year 1965.
3. It is stated that the tenanted premises is a residential property and is required bonafide by the petitioner for his residence with his family. It is stated by the deceased petitioner that he has a large joint family comprising of 18 persons. It is stated in the eviction petition that the petitioner is living in a tenanted premises bearing no. 2222, Kucha Chelan, Daryaganj, Delhi having two rooms only besides latrine, bathroom and kitchen. It is pleaded that this premises is insufficient and not suitable for the large family. It is stated that occasionally, relatives of the petitioner come for whom there is no place to stay even for a couple of days. Therefore, the tenanted premises is required by the petitioner for his residence alongwith his family members and that he Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //5// has no other reasonably suitable accommodation for this purpose. It is on the basis of these facts, that a prayer was made by the petitioner to pass an eviction order in respect of the tenanted premises in his favour and against the respondent.
Respondents' case
4. Summons were served upon the deceased respondent. Written statement dated 23.03.1989 was filed. It was pleaded by the respondent that he had become the owner of the tenanted premises by prescription and adverse possession. He further stated that the petitioner have other properties available which can be used by the petitioner for residence. The respondent further denied that the petitioner has as many members in the family residing with the petitioner.
5. By judgment dated 20.05.2000, eviction order was passed against the tenant. The tenant filed a revision petition before the Hon'ble High Court of Delhi which was disposed off by judgment dated 27.03.2012, by which the parties were permitted to lead additional evidence before this court. Additional evidence has been lead and now the case is listed for fresh judgment on the Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //6// eviction petition.
6. During the course of final arguments, Ld. Counsel for the respondent argued that the petitioner has led additional evidence beyond the scope of order dated 27.03.2012 passed by the Hon'ble High Court of Delhi. It is averred that the petitioner was permitted to adduce additional evidence only as mentioned by him in paragraphs no. 3 & 4 of his application filed before Hon'ble High Court under O. 41 R. 27 of CPC. A copy of the application filed by the petitioner before the Hon'ble High Court was filed before this court on 17.03.2018. It is argued that the additional evidence led by the petitioner including certain documents which was not permitted by the Hon'ble High Court to be led, cannot be read in evidence while deciding the present case.
7. On perusal of paragraph no. 3 & 4 of the aforementioned application filed by the petitioner under O. 41 R. 27 of CPC, the court finds mention of only few of the documents relied upon and proved by the petitioner herein. There is no mention of some of the other documents that have been relied upon by the petitioner while leading additional evidence. It is to be determined whether the other documents which were not mentioned in the application Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //7// filed by the petitioner, can be read in evidence. For this purpose, reference is made to paragraph no. 9 of the order dated 27.03.2012 passed by the Hon'ble High Court. In the said paragraph, the Hon'ble High Court permitted the parties to "adduce additional evidence before the trial court in terms of the averments made in their respective applications as aforenoted." The averments that were made in the application of the petitioner was that the respondent is indeed a tenant in the premises and has not become owner of it by way of adverse possession or prescription. The Hon'ble High Court permitted the parties to lead evidence in terms of the "averments". Averments are the assertions made by the petitioner. The Hon'ble High Court did not specify that the parties shall only prove the 'documents' that were specified in the application. The Hon'ble High Court used the word "averments" and not documents. Therefore, the Hon'ble High Court permitted the petitioner to lead any additional evidence in support of the averment that the respondent is indeed a tenant in the premises. It is also observed that when the petitioner was leading additional evidence, the respondent never raised an objection about the petitioner leading evidence beyond the scope of order dated 27.03.2012. Infact, the respondent even cross-examined the petitioner and his witnesses on all the additional evidence lead. The respondent cannot claim to Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //8// have been prejudiced by the petitioner leading evidence allegedly beyond the scope of order dated 27.03.2012. In these circumstances, the court is of the view that the additional evidence led by the petitioner is not beyond the scope of order dated 27.03.2012 as it is in furtherance of the averment made by him in the application under O. 41 R. 27 of CPC that the respondent is occupying the tenanted premises as a tenant. Therefore, the entire additional evidence led by the petitioner including the documents relied upon, shall be considered while deciding the present case.
8. During the pendency of the present case, the original petitioner and original respondent died and their respective legal representatives were brought on record.
Evidence led by the parties.
9. In order to prove the case, petitioner Late Sh. Miraj Ahmed examined himself as PW-1. Sh. Vijay Prakash from the Land & Building Department of the Evacuee Property Cell was examined as PW-2 and Sh. C.S.Makhija from BSES was examined as PW-3.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //9//
10. Mst. Sakina, wife of the original respondent was examined as RW-1. Smt. Yashoda Rani from the Competent Authority (Slums) was examined as DW-2. Sh. Jai Singh from Food & Supply Department was examined as DW3. Sh. Rajinder Kumar from Postal Department was examined as DW-4. Sh. Yogesh Kumar Sharma from MCD was examined as DW-5. Sh. Giriraj Sharma from the Passport office was examined as DW-6. Sh. Mohd. Zahir, son of the respondent was examined as DW-7.
11. I have heard the learned counsels for the parties and carefully gone through the record. The respondent has denied that the tenanted premises was let out for use as a residence. However, this denial was made in the written statement dated 23.03.1989. The law has changed since then. The scope of section 14(1)(e) of the Delhi Rent Control Act has been enlarged in view of the Judgment of the Hon'ble Supreme Court titled Satyawati Sharma Vs. Union of India, AIR 2008 SC 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition u/s 14(1)
(e) of the Delhi Rent Control Act. Therefore, it need not be decided by the court whether the the tenanted premises was indeed let out to be used as a residence. 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 :-
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //10// i. That he is owner and landlord in respect of the tenanted premises.
ii. That he requires the premises bonafide for himself or for any member of his family dependent upon him.
iii. That he does not have any other reasonably suitable accommodation.
Ownership of tenanted premises and relationship of landlord-tenant between petitioner and respondent:
12. The respondent denied that there exists a relationship of landlord and tenant between the petitioner and the respondent. It is pleaded by the respondent that he became owner of the tenanted premises by way of adverse possession and prescription. It is stated in the written statement that the respondent was never a tenant in the premises nor accepted the petitioner or anyone else as landlord. It is averred that the respondent has perfected his title to the tenanted premises by adverse possession as he has been in open, notorious and hostile occupation and possession of the property since about the year 1950. It is claimed that the respondent has all the time represented himself to be owner of the property. It is stated that no one has ever claimed any rent from him or made the assertion that he is owner and landlord of the property. It is pleaded that the respondent has always regarded himself as Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //11// owner of the property and has been accepted as such by one and all in the area. It is submitted that the ownership rights of the respondent stands perfected by prescription and adverse possession as he has been in possession of the property for more than 12 years and the respondent denies any other person in the world to have anything to do with the property.
13. Per Contra, the petitioner has claimed ownership over the tenanted premises and places reliance on a sale deed Ex.PW-1/1 executed in his favour by the previous owner Sh. Girdhari Lal. Therefore, it first needs to be determined by the court if the respondent had become owner of the tenanted premises by adverse possession and prescription. In the case of Hansraj V/s Jagminder Singh & Ors. 2017 (8) AD (Delhi) 483, the Hon'ble High Court of Delhi after relying upon several decisions of the Hon'ble Supreme Court held the following:
"9.From the aforesaid discussion, it becomes clear that the courts look at disfavour with the claim of adverse possession. Adverse possession is looked upon with disfavour because adverse possession commences in a wrong i.e. act of wrongful possession and is maintained against a right i.e. right, title and interest of the true owner. Adverse possession has to be proved by clear cut evidence showing when the adverse possession commences i.e. the date, month and year or at least the month and year and adverse possession has to be proved to be nec vi, nec Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //12// clam, nec precario. Wrong possession is not automatically an adverse possession. Also for commencement of adverse possession, it should be brought to the notice of the true owner the claim of adverse possession so that the true owner can take all steps in accordance with law."
14. From the aforesaid decision of the Hon'ble High Court, it is clear that the respondent had to prove atleast the month and year from which his alleged adverse possession commenced. The respondent also had to prove as to who was the true owner of the premises and that he had brought to the notice of the said owner, his claim of adverse possession.
15. From the written statement, testimony of RW-1 Smt. Sakina, wife of the original respondent and testimony of RW-7 Sh. Zahir Ahmed, son of the original respondent, it is clear that the respondent has failed to disclose the month and year from which his alleged adverse possession commenced. The respondent has also not pointed out as to who was the true owner of the premises. The respondent has not even averred that he had brought to the notice of the true owner that he has a claim of adverse possession over the tenanted premises. It has been pleaded by the respondent that he has never accepted any person "in the world" to have anything to do with the tenanted premises in any manner whatsoever. The respondent has claimed to have Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //13// become owner by adverse possession and prescription only on the ground that he has openly enjoyed possession of the premises for a considerable period of time. However, this is not what establishes that a person has become owner of a property by adverse possession or prescription. The respondent has failed to prove or even allege the aforesaid necessary requirements of becoming owner by adverse possession and prescription. In these circumstances, it is held that the respondent is not owner of the tenanted premises.
16. It is now to be ascertained whether there exists a relationship of landlord and tenant between the petitioner and the respondent. At the outset, it is observed that though the respondent has denied his status of tenant in the premises, he has not disclosed how and in what capacity he came in possession of the property, if not as a tenant. Though the petitioner has filed and relied upon the documents maintained by the State in which it is stated that the respondent is occupying the tenanted premises as a tenant, the respondent has not disclosed as to how he came in possession of the property. Section 106 of the Indian Evidence Act provides that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Therefore, as per Section 106 of the Indian Evidence Act, it was Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //14// incumbent upon the respondent to prove how he came in possession of the property if not as a tenant. Mere bald denial of status of tenant by the respondent shall not suffice.
17. The Hon'ble Supreme Court in the case of Maria Margadia Sequeria Vs. Erasmo Jack De Sequeria (D) decided on 21.03.2012 in Civil Appeal No. 2968 of 2012 (Arising out of SLP (C) No. 15382 of 2009) held the following:
"68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the title holder's claim to possession to plead with sufficient particularity on the basis of history claim to remain in possession and place before the Court all such documents as in the ordinary course of human affairs are expected to be there.
Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents.
69. the person averring a right to continue in possession shall, as far as possible, give a detailed particularized specific pleading alongwith documents to support his claim and details of subsequent conduct which establish his possession.
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70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property; (b) title of the property; (c) who is in possession of the title documents (d) identity of the claimant or claimants to possession; (e) the date of entry into possession; (f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method; (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount; (h) If taken on rent, license fee or lease-then insist on rent deed, license deed or lease deed; (i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.; (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein ; and (k) basis of his claim that not to deliver possession but continue in possession."
18. In the present case, the respondent has not given the details relating to his possession over the tenanted premises. He has not disclosed the details which as per the Hon'ble Supreme Court ought to have been disclosed by him. Having concealed these details, he cannot claim to have a right to continue in possession of the property.
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19. While denying the relationship of landlord and tenant between the parties, the respondent has relied upon the decision of the Competent Authority (Slums) dated 01.05.1995, in a petition filed by the petitioner Miraj Ahmed under Section 19(i)(a) of the Slum Area (Improvement & Clearance) Act. It is argued by Ld. Counsel for the respondent that the Competent Authority has already held that there does not exist a relationship of landlord and tenant between the parties.
20. However, this court is of the view that it was a prima facie opinion given by the Competent Authority in its judgment dated 01.05.1995 and did not give a conclusive finding on the relationship between the parties. Moreover, the documents that have been relied upon by the petitioner in the present case which are to be examined by the court while passing the present judgment, were not placed before the Ld. Competent Authority.
21. While relying upon a legal notice issued by the petitioner dated 24.10.2017 sent to the respondent, Ld. Counsel for the respondent has argued that the petitioner has admitted that relationship of landlord and tenant does not exist between the parties. Attention of the court is drawn to Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //17// paragraph no. 6 of the legal notice.
22. It is provided in paragraph no. 6 of the aforesaid legal notice that since the respondent has set up a title in the tenanted premises, the tenancy rights have been forfeited and therefore, there does not exist a relationship of landlord and tenant. It is pertinent to mention here that during final arguments, Ld. Counsels for the parties stated that a suit for possession has been filed by the petitioner against the respondent which is pending before a civil court.
23. In the case of Hansraj Vs. Jagminder Singh & Ors., 2017 (8) AD (Delhi) 483, in a similar situation, Hon'ble High Court of Delhi held that there is no legal bar to avail two remedies i.e. eviction petition before the Rent Controller and suit for possession before the Civil Court. The court has to ascertain whether the present case was maintainable on the day when it was filed. It is during the pendency of the case that the respondent denied the relationship of landlord and tenant and claimed ownership over the property. Therefore, the petitioner chose to also file a civil suit for possession. This has also been explained in the legal notice sent by the petitioner dated 24.10.2017. It has been stated that since the respondent has set up a title over the tenanted premises, the relationship of landlord and tenant does not exist. This does not Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //18// imply that on the day when the eviction petition was filed, there was no relationship. The alleged admission of the petitioner that there exists no relationship, cannot be read in isolation and has to be considered in the context in which it was made.
24. The eviction petition was filed by late Sh. Miraj Ahmed who has examined himself as PW-1. He has testified that he had purchased the property from Sh. Girdhari Lal vide sale deed Ex.PW-1/1. The Hindi translation of this sale deed has been placed on record by the petitioner. PW-1 has also proved a document Ex.PW-1/15 which is a receipt of payment made by him of house tax for the tenanted premises. The site plan has been proved as Ex. PW-1/16.
25. PW-1 has deposed that a survey was conducted by the Office of the Custodian of Evacuees' Property. A survey report Ex.PW-1/X1 was prepared in this regard. It is testified that it has been recorded in the survey report that Mohd. Faiyaz and Mst. Raisa Khatoon were the owners/landlord of the tenanted premises and Sh. Mohd. Nasir son of Sh. Ali Bux was tenant in the property. As per the survey report, rent was being paid by Sh. Mohd. Nasir to Mst. Raisa Khatoon. In the written submissions filed by the respondent dated Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //19// 15.03.2018, it is stated that the document Ex. PW-1/X1 has not been proved in accordance with law. It is pleaded that merely by exhibiting this document, does not waive the requirement of proving the contents of the document Ex.PW-1/X1. It is stated that presumption under Section 90 of the Indian Evidence Act is only towards the genuineness of the document and separate proof of its contents are required as per the Evidence Act. It is submitted that there are material discrepancies in the document Ex.PW-1/X1. Therefore, the contents of the documents were required to be proved by the petitioner like any other fact. It is stated that the petitioner has miserably failed to do so.
26. The Court is of the view that the respondent is correct to the extent that Section 90 of the Indian Evidence Act provides for only presumption towards genuineness of the document and does not provide that the contents of the document shall be presumed to be correct. The document Ex.PW-1/X1 is more than 30 years old and has been produced from proper custody. Therefore, the court shall presume that such a document exists. It is not by virtue of Section 90 of the Indian Evidence Act that the court presumes that the contents of the document are correct.
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27. It is submitted on behalf of the respondent that as per the document Ex.PW-1/X1, Sh. Mohd. Nasir was the occupant of the tenanted premises as a tenant. However, during cross-examination, PW-1 stated that he does not know as to who was occupant of premises in the year 1951.
28. It is further stated on behalf of the respondent that as per the document Ex.PW-1/X1, the number of occupants of the property are stated to be eleven, whereas at the back of the report, endorsement of the number of members is shown as eight. It is stated that this is contradictory.
29. It is further submitted on behalf of the respondent that the petitioner has not disclosed as to when and how he obtained the report. It is stated that no receipt of charges paid to obtain the report has been filed by the petitioner.
30. It is stated in the written submissions filed by the respondent that as per the document Ex. PW-1/X1, the owners of the tenanted premises in the year 1952 were Raisa Khatoon and Mohd. Fayaz. It is stated that the petitioner has failed to place on record the order of Custodian by which the tenanted premises was notified as Evacuee Property. It is stated that it was only after Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //21// this notification that the Custodian could have issued demand letter Ex.PW- 1/X2.
31. The court is of the view that the aforementioned alleged contradictions and anomalies ought to have been put by the respondent to the witnesses of the Petitioner to elicit a response and explanation. Despite the fact that as per the respondent, there are inherent contradictions in the document Ex.PW- 1/X1, he failed to put the alleged contradictions to the witness PW-1 who proved the document Ex.PW-1/X1. The authenticity of this document Ex. PW- 1/X-1 has not been challenged during cross-examination of PW-1. Not even a suggestion has been put to the witness that contents of the said document are false. Having not put the alleged contradictions to PW-1 during cross- examination, the respondent cannot raise the same at this stage when the petitioner does not have an opportunity to lead evidence to explain the alleged contradictions in the document. During cross-examination, the respondent never questioned the petitioner as to how he had obtained the document Ex.PW-1/X1 and therefore, cannot at this stage, raise this issue. As has been held hereinabove, the Court shall presume that the document Ex.PW-1/X1 exists in the records of the State. The contradictions in the document, if any, Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //22// pertains to matters not relevant while deciding the present case. There is no contradiction or anomaly to the extent that the document provides that Sh. Mohd. Fayaz and Mst. Raisa Khatoon were the owners of the premises and that Sh. Mohd. Nasir who was admittedly the father of the deceased petitioner, was occupying the tenanted premises as a tenant.
32. Also, the Court is of the view that the petitioner need not have placed on record order of the Custodian by which the tenanted premises was notified as an Evacuee property. It is not necessary for the petitioner to have placed on record each and every document which established the title of all previous owners of the premises. As has been explained hereinabove, it was for the respondent to have proved as to who is or was the true owner of the premises against whom he claims adverse possession. It was for the respondent to prove that he had brought to the notice of the true owner his claim of adverse possession.
33. There is no reason to doubt the correctness of document Ex. PW-1/X-1. From this document, it is clear that the premises were earlier owned by Mohd. Fayaz and Mst. Raisa Khatoon.
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34. The petitioner has also relied upon attornment letter dated 24.02.1965 issued by the Office of Settlement Commissioner identified as Ex. PW-1/X4. This document was addressed to Sh. Mohd. Nasir son of Sh. Ali Bux. It is not in dispute that the original respondent late Sh. Mohd. Sharif was son of late Sh. Mohd. Nasir. It is provided in this document Ex.PW-1/X4 that the provisional possession of the premises has been provided to the auction purchaser Sh. Girdhari Lal. Late Sh. Mohd. Nasir was directed to pay rent to Sh. Girdhari Lal for availing protection from ejectment. There is no gainsaying the fact that this document does not specify the address of the property regarding which it pertains. However, the address of the tenanted premises has been categorically provided under the name of Sh. Mohd. Nasir to whom is was being sent. In the absence of any material placed on record by the respondent, there is no reason to believe that the document does not pertain to the tenanted premises.
35. PW-2 Sh. Vijay Prakash from the Land & Building Department has proved a letter of the Department of Rehabilitation written to the Sub-Registrar requesting that the tenanted premises be registered in the name of Sh. Girdhari Lal who has been declared purchaser at sale of property by public Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //24// auction. This letter dated 19.02.1965 has been proved as Ex.PW-2/13.
36. PW-2 has further proved Certificate of Sale issued by the Regional Settlement Commissioner in favour of Sh. Girdhari Lal. It has been provided in this document that Sh. Girdhari Lal has given the highest bid at sale by public auction which has been accepted and he has been declared purchaser of the property. This certificate has been proved as Ex.PW-2/X14.
37. PW-2 has further proved a demand letter dated 06.05.1964 issued by the Regional Settlement Commissioner and written to Sh. Girdhari Lal. This document has been proved as Ex.PW-2/X15.
38. From the documents Ex. PW-1/1, Ex. PW-1/X4, PW-2/X13, PW-2/X14 and PW-2/X15, it is evident that Sh. Girdhari Lal had purchased the tenanted premises and became its owner. Thereafter, he executed sale deed Ex. PW-1/1 in favour of the petitioner. Execution of the sale deed and its registration has also not been challenged during cross-examination and is deemed to have been admitted as correct. The petitioner has also been paying house tax of the tenanted premises which is evident from the Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //25// document Ex.PW-1/15.
39. The court is of the view that the petitioner has successfully proved that he purchased the tenanted premises from Sh. Girdhari Lal and became its owner.
40. The definition of landlord under the Delhi Rent Control Act is wide enough to include an owner. In this regard, reference is made to the decision in the case of Jagjeet Kaur Vs. Moolchand & Ors. 22(1982) DLT 154 of the the Hon'ble Delhi High Court in which the following was held:
"Moolchand is the owner as well as the landlord, and therefore he has a right to institute an application for eviction of the tenant under Section 14(1)(e) of the Act and he would be entitled to obtain such an order if other ingredients of Section 14(1)(e) of the Act are fulfilled. In Smt. Savitri Devi Abdali and others Vs. Ram Bhaj Datta, this court held that the definition of 'landlord' as given in Section 2(e) of the Act is of the widest amplitude and would embrace within it a landlord who is also an owner of the property. In Madan Lal Narula Vs. Hazard Singh, 1977 (2) Rent Law Reporter 641 this Court has observed that the definition of the word landlord' covers a person who is entitled to receive rent. It has been further observed that the ordinary meaning of the word landlord' includes the owner. In that case premises were let out by a house agent and subsequently the owner filed an eviction petition and it was held that the owner was entitled to file the eviction petition. Thus if a property owned by a person, is let out by Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //26// a third person, the owner is entitled to institute an eviction application as he is also a landlord' within the meaning of Section 2(e) of the Act."
41. From the above, it is evident that the petitioner Sh. Miraj Ahmed was the owner and therefore landlord of the tenanted premises and was competent to have filed the present eviction petition.
42. The petitioner has relied upon the document Ex.PW-1/X6 and has stated that this is an affidavit of the respondent Late Sh. Mohd. Sharif submitted to the electricity provider for obtaining electricity connection. It is pleaded that Ex.PW-1/X5 is receipt of payment of fees deposited by the petitioner with BSES Yamuna Power Limited for obtaining the document Ex.PW-1/X6. It is stated by the petitioner that he obtained the document Ex. PW-1/X6 from BSES Yamuna Power Limited after he deposited the fees.
43. It has been argued by Ld. Counsel for the respondent that the document identified as Ex.PW-1/X6 cannot be read in evidence as primary evidence has not been produced or filed for proving the document. It is further pleaded by the respondent that documents Ex.PW-1/X5 and Ex.PW-1/X6 are forged because as per the contents of the affidavit Ex. PW-1/X6, same was Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //27// accompanied with ration card of Sh. Mohd. Sharif. It is argued that had the affidavit been genuine, the petitioner would have also obtained copy of ration card of Sh. Mohd. Sharif and filed the same. It is pleaded that since the petitioner does not have access to the ration card of Sh. Mohd. Sharif, he produced the forged affidavit without the ration card. It is further submitted that in the affidavit, the address of Sh. Mohd. Sharif is stated to be of first floor of the tenanted premises. It is pointed out that there is no first floor in the premises. Therefore, the document pertains to a property which does not exist and hence is contradictory, forged and must be discarded. It is further submitted that the four signatures on the document are different from each other.
44. For proving the documents Ex.PW-1/X5 and PW-1/X6, the petitioner had summoned record from BSES Yamuna Power Limited. However, when PW-3 Sh. C.S.Makhija from BSES Yamuna Power Limited appeared before Court, he stated that the record of the electricity connection installed at the tenanted premises is not traceable despite best efforts and it might have been misplaced.
45. In the case of Sh. Prem Chandra Jain and Others Vs Sri Ram & Ors. Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //28// (2009) 113 DRJ 617, the Hon'ble Delhi High Court while relying upon the decision in the case of Liaquan Begum Vs. Abdul Hamid 1979 RLR 545, held that when a document is "not traceable", it enables the invocation of Section 65 of the Indian Evidence Act. It was held that it is sufficient to prove that the document is not available at the relevant time and its whereabouts are unknown. It was held that a litigant without seeking permission from the court, if satisfies the ingredients of Section 65 of the Indian Evidence Act, is permitted to lead secondary evidence. It was held that neither the Evidence Act or the CPC or any other Rules and Regulation or statute require filing of application seeking permission of the court to adduce secondary evidence.
46. In view of the said decision of the Hon'ble Delhi High Court, in view of the testimony of PW-3, the petitioner is entitled to prove the document Ex. PW-1/X6 by leading secondary evidence since the original is not traceable. The document Ex.PW-1/X6 bears an endorsement of BSES Yamuna Power Limited that it is a true copy. The respondent has not disclosed as to in what capacity he had obtained electricity connection from the service provider. It is common knowledge that while filing an application for electricity connection, the applicant has to disclose in what capacity he is occupying the premises. In the absence of the record with the BSES, the respondent has exclusive Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //29// knowledge of the application made by him for providing electricity connection. As per Section 106 of the Indian Evidence Act, the respondent ought to have proved how he obtained electricity connection and what documents he had furnished in this regard, if not the affidavit Ex. PW-1/X6. The respondent has withheld such evidence and now cannot refute the evidence led by the petitioner in this regard.
47. Merely because a document i.e. ration card finds reference in the affidavit and has not been filed does not imply that the affidavit is forged and fabricated. It is argued by the Ld. Counsel for the respondent mentioning of "FF" on the affidavit next to the address of the executant implies that the executant claims to be residing on the first floor of the property which does not exist. However, this or any other anomaly was never put to PW-1 when he proved the document Ex.PW-1/X6. At this stage, the respondent cannot raise the objection. PW-1 has explained satisfactorily how he obtained the document from the service provider i.e. BSES. There is no reason to doubt the correctness of the document Ex. PW-1/X6. In this document which is an affidavit of the deceased respondent, he has admitted that he is occupying the tenanted premises as a tenant. Moreover, the respondent has not lead any evidence to prove that he is occupying the tenanted premises in a capacity Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //30// other than a tenant. His claim to have become owner by adverse possession or prescription has already been rejected hereinabove by this court.
48. The petitioner PW-1 Sh. Miraj Ahmed has not only proved the aforesaid documents Ex.PW-1/X1 and Ex.PW-1/X4 but also Ex.PW-1/X2 (demand letter dated 16.12.1953 issued by Custodian of Evacuee Properties addressed to late Sh. Mohd. Nasir), Ex.PW-1/X3 (proforma for determination of rent), Ex.PW-1/X6 (affidavit of the respondent late Sh. Mohd. Sharif purported to have been executed and submitted for providing electricity at tenanted premises), which establish that the respondent/his ancestors Late Sh. Mohd. Nasir have been occupying the tenanted premises as tenants.
49. In this regard, the petitioner has also examined PW-2 Sh. Vijay Prakash from the Land & Building Department who has proved a letter dated 14.01.1956 written by Sh. Mohd. Yamin son of Late Sh. Mohd. Nasir to the Custodian of Evacuees Property as Ex.PW-2/X7. In this document, it is admitted by the son of the original tenant that the tenanted premises herein is being occupied by virtue of a tenancy for which rent is being paid regularly to the Custodian.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //31//
50. PW-2 has further proved the eviction warrants dated 13.12.1952 issued by the Deputy Custodian, as Ex.PW-2/X8. PW-2 has further proved a letter dated 08.11.1952 of the Assistant Custodian, as Ex.PW-2/X9, letter dated 01.06.1951 of the Assistant Custodian regarding allotment of the tenanted premises, as Ex.PW-2/X10 and filed noting dated 01.05.1951, as Ex.PW-2/X12.
51. These documents Ex.PW-2/X7, Ex.PW-2/X8, Ex.PW-2/X9, Ex.PW-2/X10 and Ex.PW-2/X12 also establish that the respondent Late Sh. Mohd. Sharif/his father Late Sh. Mohd. Nasir were occupying the tenanted premises as tenants.
52. On the other hand, from the testimony of the seven witnesses examined by the respondent and the documents proved by them, it can at best be held that the respondent has been in occupation of the tenanted premises since a long time.
53. The petitioner has relied upon documents like Ex. PW1/X6 and Ex. PW2/X7 in which admission has been by the persons through whom the respondent derives interest in the tenanted premises, that the property is Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //32// being occupied by them as tenants. By virtue of these documents also, the respondent is estopped from denying that Sh. Girdhari Lal was the owner and landlord of the tenanted premises. The respondent also has no locus standi to challenge the legality of the document Ex. PW-1/1 by which title of the tenanted premises was transferred to the petitioner by the erstwhile owner Sh. Girdhari Lal. The respondent has no right to object to the transfer. There is nothing on record to show that Sh. Girdhari Lal had objected to the filing of the present petition. On the contrary, as per the unrebutted testimony of PW-1, Sh. Girdhari Lal had tried to resolve the dispute of the petitioner with the respondent. It has been deposed by PW-1 that the persons in the neighbourhood including Sh. Girdhari Lal, between the years 1965 to 1975 arranged talks on the subject 2-4 times between the petitioner and the respondent.
54. In judgment titled as Rajender Kumar Sharma vs. Smt. Leela Wati reported as 155 (2008) DLT 383 the Hon'ble High Court of Delhi held the following:
".....It is settled law that for the purpose of section 14 (1) (e) of Delhi Rent Control Act, a landlord is not supposed to prove absolute ownership as required under Transfer of Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //33// Property Act. He is required to show only that he is more than a tenant. In this case, the landlady had placed on record the documents by which she became owner. The attornment given by the erstwhile landlord in her favour as well as an admission made by the tenant by filing petition under section 27 of Delhi Rent Control Act acknowledgement the landlordship of landlady. Thus, the conclusion arrived at by the ARC regarding ownership and relationship of landlord and tenant were based on sound legal position and the cogent material before it......."
55. In the present case, the petitioner has been able to establish that he is more than a tenant. There is also a document Ex.PW-1/1 placed on record by which the petitioner became the owner.
56. The principle is very clear that once a tenant always a tenant. The tenant cannot dispute the title of his landlord or his successor-in-interest. Several documents have been proved by the petitioner which establish that the father of respondent from who the respondent derives interest in the property, was occupying the tenanted premises as a tenant. As per the record maintained by the State, the respondent was also informed about the ownership of Sh. Girdhari Lal. The respondent therefore cannot dispute the title of his landlord Sh. Girdhari Lal or his successor-in-interest i.e. the petitioner herein.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //34//
57. From the documents proved by the petitioner and in particular the survey report Ex.PW-1/X1, it has been proved that the respondent was a tenant under the erstwhile owners Sh. Mohd. Fayaz and Mst. Raisa Khatoon. He was paying rent of Rs.10/- to Mst. Raisa Khatoon. The property was later owned by the custodian of Evacuees Properties. It is proved from the testimony of PW-1 & the documents relied upon by the petitioner that auction of the property was carried out, Sh. Girdhari Lal made the highest bid and purchased the property. It has been proved that Sh. Girdhari Lal sold the property to the petitioner Sh. Miraj Ahmed. The respondent is now denying the title of the petitioner. Section 116 of the Evidence Act is a compete answer to the plea taken by the respondent. The Hon'ble Supreme Court in the case of Bansraj Laltaprasad Mishra v. Stanley parker Jones (2006) 3 SCC 91 held the following:
".....13. The underlying policy of section 116 is that where a person has been brought into possession as a tenant by the landlord and if that tenant is permitted to question the title of the landlord at the time of the settlement, then that will give rise to extreme confusion in the matter of relationship of the landlord and tenant and so the equitable principle of estoppel has been incorporated by the legislature in the said section.
14. The principle of estoppel arising from the contract of tenancy is based upon a healthy and salutary principle of Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //35// law and justice that a tenant who could not have got possession but for his contract of tenancy admitting the right of the landlord situation taking undue advantage of the possession that he got and any probable defect in the title of his landlord. It is on account of such a contract of tenancy and as a result of the tenant's entry into possession on the admission of the landlord's title that the principle of estoppel is attracted.
15. Section 116 enumerates the principle of estoppel which is merely an extension of the principle that no person is allowed to approbate and reprobate at the same time......."
58. Accordingly, in view of the provisions of section 116 of the Evidence Act, the respondent is estopped from challenging the title of the petitioner as he is successor-in-interest of the erstwhile owners. In the case of Atyam Veerraju v. Pechetti Venkanna (1996) 1 SCR 831, the Hon'ble Supreme Court quoted with approval the judgment of the Privy Counsel in Bilas Kunwar v. Desraj Ranjit Singh, wherein it was observed as follows:
"A tenant who has been let into possession cannot deny his landlords title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord."
59. If the transfer of the landlord's title is valid, and even if the tenancy is not attorned in favour of the transferee, the lease continues. Thus, a Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //36// transferee of the landlord's rights, steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. Attornment by the tenant is unnecessary to confer validity to the transfer of the landlord's rights and there is no such statutory requirement.
60. Reference may be made to the case of Hajee K. Assainar vs. Chacku Joseph AIR 1984 Ker 113. In the case of Mahendra Raghunathdas Gupta vs. Vishvanath Bhikaji Mogul AIR 1997 SC 2437, it was held that attornment by tenant is not necessary though it is desirable. Mere non-payment of rent by tenant even for a considerably long period does not extinguish the landlord- tenant relationship. The possession of a tenant cannot be adverse to his landlord. The petitioner is therefore, the landlord and owner of the tenanted premises.
61. In these circumstances, I am of the opinion that the petitioner is competent to have filed the present eviction petition as he is the owner as well as landlord and the respondent is the tenant in respect of the tenanted premises for the purpose of section 14 (1) (e) of DRC Act. Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //37// Requirement of premises bonafide by the petitioner for himself and for members of his family dependent upon him and non-availability of any other reasonably suitable accommodation:
62. It is the case of the petitioner that his current residence at property no. 2222, Kucha Chelan, Daryaganj is insufficient and unsuitable for his large joint family to reside. It is pleaded that the tenanted premises are needed for the residence of the petitioner and his family. The petitioner has provided the names of the persons residing with him. Including the petitioner, there are 18 persons whose names have been disclosed in the petition. Admittedly, the petitioner, his wife and his parents have died. That leaves 14 members of the family who are residing at the aforesaid property no. 2222. The petitioner has testified that his family comprises of his wife, eight sons and one daughter. He has deposed that five of his sons are married. He has further stated that five of his sons live with him. In the testimony of the Petitioner, the five sons residing with him are named Noor Ahmed, Irfan Ahmed, Furkan Ahmed, Rizwaan Ahmed and Sultan Ahmed. He has deposed that his daughters-in- law and their children also live with him.
63. The respondent has failed to bring on record any evidence to prove that the 14 members of petitioner's family have not been residing in property Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //38// no. 2222 or that this property is indeed large enough to accommodate as many members of the family of the petitioner. On the other hand, the petitioner has proved photocopies of ration cards issued to him and his children as Ex.PW-1/17A, Ex.PW-1/20A to Ex.PW-1/20C, Ex.PW-1/21A to Ex.PW-1/21C and Ex.PW-1/22A to Ex.PW-1/22C, which establish that they are indeed residing at property no. 2222. The ration cards are public documents. There is no reason to doubt the authenticity of these documents. In the case of Dipika Arora Vs. S.N. Sehgal 58 (1995) DLT 729, the Hon'ble High Court of Delhi while relying upon photocopies of ration cards held the following:
"A photocopy of the Ration-card issued earlier showing the same position has also been placed on record by the petitioner. This document was filed by the petitioner alongwith the list of document dated 14.05.1982. Therefore, this must be of a period prior to that. I have to say this because the date on this photocopy of Ration- card is not available. A Ration-card is an official document which is issued after due verification. The respondents knew that the petitioner was relying on a Ration card since its photocopy was filed by the petitioner on record on 14.05.1982. If the petitioner had any doubt about the same he could have taken steps by lodging a complaint to the department which would have necessitated fresh verification and if the document was false necessary consequences would have followed.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //39//
64. Therefore, it is established that the five sons and daughter of the petitioner are indeed residing at property no. 2222 with their respective families. By virtue of their residence in the property of their father/petitioner, they shall be deemed to be family members of the petitioner dependent upon him for the purposes of petition under Section 14(1)(e) of the Delhi Rent Control Act. In the case of Shakuntala Gupta Vs. Surender Kumar, 53 (1994) DLT 767, the question arose before the Hon'ble High Court of Delhi whether the son of the landlady could be considered as living with her for the purposes of Section 14(1)(e) of the Delhi Rent Control Act. In this case, the sons were having a separate kitchen and were independent income tax assesses. The Hon'ble High Court held that a children being independent assesses is entirely irrelevant. Also, it was held that they having separate ration cards cannot be a ground to hold that they are living separately from their mother. It was observed that all of them were residing in the same building. It was held that those who normally reside with the landlord are considered as part of his family.
65. The number of grandchildren living with the petitioner has not been disclosed except in the ration cards of the sons which are on record. It is Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //40// pertinent to mention here that during the course of final arguments, the Ld. Counsels appearing for the parties disclosed that the judicial file of the present case was earlier lost and had to be reconstructed. It is pleaded that during reconstruction of the judicial file, certain documents could not be traced and placed before the court. Ration cards of only three sons of the petitioner are on record. Ration cards of Sh. Rizwan Ahmed, Sh. Noor Ahmed and Sh. Irfan Ahmed are on record and are proved by the petitioner as Ex PW-1/20A to 20C, Ex PW-1/21A to 21C and Ex PW-1/22A to 22C respectively. From the document Ex PW-1/20A to 20C, it appears that Sh. Rizwan Ahmed does not have a child. From the document Ex PW-1/21A to 21C, it appears that Sh. Noor Ahmed has two children i.e. one son and one daughter. From the document Ex PW-1/22A to 22C, it appears that Sh. Irfan Ahmed also has two children i.e. one son and one daughter. The date on which the ration cards were issued cannot be ascertained from its photocopies which are on record as the same are not very clear. Therefore, the exact age of the children cannot be ascertained. However, the ration cards were relied upon by the petitioner when his testimony was recorded by the court on 10.01.1996 i.e. around 22 years back. Therefore, the four grandchildren of the petitioner would be atleast 22 years of age currently.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //41//
66. The grand children of the petitioner ought to be provided with at atleast one room between two of them. The two granddaughters can be provided one room and the two grandsons can be provided another separate room. Keeping in view their age, they cannot be expected to share the room with their parents for sleeping. In the case of Amrit Lal Vs. Jagpal Singh Verma CR No. 370 of 1985 dated 25.07.1996, the Hon'ble Delhi High Court held that even a child of nine years of age cannot be expected to sleep in the same room where his parents were sleeping.
67. In the case of Harivansh Lal Vs. Madan Lal 65 (1997) DLT 4804, it was held that each married son needs atleast two rooms. The following was held in this case:
"13. Married sons require at least two rooms-one for himself and his wife and another for adjusting articles and remaining visitors."
68. The list of 18 family members who reside together in property no. 2222, as provided in the eviction petition includes names of four daughters-in-law, one daughter and her husband, of the petitioner. This indicates that there are five couples in the list. As per the aforementioned decision in the case of Harivansh Lal Vs. Madan Lal, at least 10 rooms are to be provided to these Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //42// five couples.
69. After excluding the five couples, the remaining four persons in the list of surviving 14 family members should be provided at least two rooms amongst them.
70. It is further stated in the eviction petition that when other relatives of the Petitioner come, there is no place for them to stay even for a couple of days. This need of the petitioner for a guest room cannot be said to be whimsical. In the case of Vinod Kapoor Vs. Kailash Sethi, 2008 RLR 576, the Hon'ble High Court held that the requirement of a guest room is bonafide. It was observed that it is not necessary for the landlord to cramp himself with the available accommodation so that his tenants continue to live in the premises. It was observed that when the family of the landlord grows, the requirement of the landlord and his family members is bonafide requirement. In this case, the landlady had expressed her desire to have a separate pooja room which was found to be bonafide by the Hon'ble High Court of Delhi.
71. Therefore, the petitioner has been able to establish that 2 rooms (for grandchildren) + 10 rooms (for the five couples) + 2 rooms (for the Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //43// remaining 4 non-couples in the list of 18 family members) + 1 room (guest room) = 15 rooms are required for his family's residence.
72. It is argued by the ld. Counsel for the respondent that some of the family members of the petitioner do not reside in property no. 2222 and are living separately. However, this has been explained by the petitioner in his testimony. He has deposed that the property no. 2222 has only three rooms and an open roof. He further testified that he has to depend on his relatives to accommodate his children for short durations. This explains how not all the dependent family members are residing at property no. 2222. Even otherwise, the sons of the petitioner not residing with him does not indicate that they cease to be dependent on him. Dependence of a family member is not always financial. The following was held by the Hon'ble High Court in the case of Naresh Khanna Vs. Saroj Gupta RC Rev. 281/2017 dated 28.08.2017 :-
"...It is for this reason only that eviction under Section 14(1)(e) of the Act has been ordered for the requirements of financially well off sons as well.
...It was yet further held that dependence may not in all circumstances be entirely a matter of finance. Again in J.L.Mehta Vs. Hira Devi (1970) 6 DLT 484 it was held that what constitutes a family in a particular society depends upon the habits and ideas of persons constituting that Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //44// society and the religious and socio religious customs of the community to which such persons may belong."
73. The sons of the petitioner even if are residing separately cannot be said to be not dependent upon the petitioner. As per customs, a son who is residing separately can still be dependent upon his father.
74. The ld. Counsel for the petitioner has prayed that the affidavit of the Sh. Sultan Ahmed dated 19.11.2013 which is on record be considered while ascertaining the number of grandchildren of the petitioner and calculating the number of rooms required by the petitioner's family. It is argued that the present petition was filed 30 years back and the court should take into consideration the subsequent events that took place in the last 30 years. It is pleaded that the subsequent events include increase in the number of grandchildren of the petitioner. It is submitted that since the number of grandchildren has increased, there are more rooms required by the petitioner's family.
75. For the purpose of determining whether the affidavit of Sh. Sultan Ahmed can be taken into consideration for determining the number of family members of the petitioner and the number of rooms required, reference is Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //45// made to the orders dated 21.09.2013 and 21.11.2013 which relate to bringing on record the legal representatives of the deceased petitioner. As is evident from the order dated 21.09.2013, when the application under O. 22 R. 3 of CPC was filed to bring on record the legal representatives of the deceased petitioner, an objection was taken by the respondent that the addresses of the legal representatives have been stated to be that of the deceased petitioner. It was then undertaken on behalf of the legal representatives of the deceased petitioner that a fresh amended memo of parties will be filed giving the respective addresses of the legal representatives. On the next date of hearing i.e. on 21.11.2013, an affidavit of Mr. Sultan Ahmed, son of the deceased petitioner was filed. Details of the families and residence of the legal representatives of the deceased petitioner were disclosed in the affidavit. Copy of the affidavit was supplied to the respondent.
76. In this regard, the court is of the view that since the contents of the aforementioned affidavit are not part of the pleadings and evidence led by the parties, same cannot be taken into consideration while deciding the number of rooms required by the family of the petitioner. The so called subsequent events could have been made part of the pleadings by amending the same or Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //46// by filing an application before the court for permission to bring on record the subsequent facts. Same was not done and therefore the affidavit cannot be taken into consideration while deciding the merits of the case.
77. The petitioner has deposed that the property number 2222 is built on a sixty square yards plot and consists of shops on the ground floor, three rooms and an open roof, which is insufficient for the residence of the aforementioned members of petitioner's family. The respondent has alleged that the property no. 2222 has nine residential rooms. This has been denied by the petitioner during his cross-examination. During cross-examination, respondents' witness RW-1 admitted that she has never seen these nine rooms. The respondent has only made a bald assertion that there are nine rooms in this property. When RW-1 was cross-examined on this point, she only stated that she was informed by her husband about the property having nine rooms. The respondent has not filed any material and documents to substantiate that there are indeed nine rooms in property no. 2222. In the case of Rajender Kumar Sharma v. Smt. Leela Wati 155 (2008) DLT 383, the Hon'ble High Court of Delhi held that the respondents' tenants have to place on record some material in support of the assertions made. In this context, the following Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //47// was held by the Hon'ble Delhi High Court in the case of Sarwan Dass Bange Vs. Ram Prakash, 161 (2010) DLT 80:
"The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
78. Even in the case of K.K. Sarin Vs. M/s Pigott Chapman & Co. 46 (1992) DLT 352, the Hon'ble Delhi High Court held that the tenant has to produce material on which he is relying upon. Since no material has been placed on record by the respondent, there is no reason to disbelieve that the petitioner only has nine rooms in property no. 2222, Kucha Chelan, Daryganj, Delhi.
79. Though there is unrebutted testimony of the petitioner on record that there are only three rooms in the property no. 2222, even if it is presumed that the respondent is correct and there are indeed nine rooms at property no. 2222, same is not sufficient as the need is for 15 rooms for the petitioner's family's residence.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //48//
80. Moreover, the property no. 2222 is not owned by the petitioner. The petitioner has testified that he has been occupying this property as a tenant under the Custodian of properties. He has deposed during cross-examination that he has not been paying rent to the Custodian as no one has been coming to collect rent. He deposed that he was inducted as tenant by the Custodian when he filed an application. This assertion of the petitioner that he does not own property no. 2222 remains unchallenged by the respondent and there is no reason to disbelieve the petitioner on this count. The respondent has failed to prove that the property no. 2222 is owned by the petitioner. Therefore, it is established that the petitioner has indeed been occupying the property no. 2222 as a tenant. Unless a property is owned by the landlord, it cannot be said to be a reasonable alternate accommodation available with him for his residence and for residence of his family members. In this regard, reliance is placed upon the decision of the Hon'ble High Court of Delhi passed in similar facts of case titled Ashok Kumar Mehra Vs. Kuldeep Kumar Mehra, 2010 (172) DLT 274. The following was held by the Hon'ble High Court in this case:
"26. Respondent is admittedly living in a rented accommodation and has placed various documents on record. Now if respondent wants to live in his own house. i.e. property in question he cannot be compelled to live in rented accommodation when his own accommodation is Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //49// available even more particularly when he was no alternative accommodation in his possession. Under these circumstance, it cannot be said by any stretch of imagination that the requirement of respondent to live in his own house is not bonafide or genuine. Respondent who is presently living in a rented accommodation has all the right to shift to his own property.
27. In Kailash Chand & Ors. Vs. Chand, 1998, RLR 603, it has been observed that;
"If an owner is living in tenanted premises, he is entitled to seek eviction of his tenant and this desire cannot be held to be imaginary, fanciful or unnatural."
28. Similarly, in Surjit Singh Kalra Vs. Union of India (UOI) and Anr. with Mahendra Raj Vs. Union of India (UOI) and Colonel Ashok Puri, JT1991 (1) SC 417 the court observed;
"The landlord cannot be denied possession of his premises under Section 14B when he is residing in a rented accommodation".
81. In the case of Dipika Arora Vs. S.N.Sehgal 58 (1995) DLT 729, the Hon'ble High Court of Delhi observed that the desire of the landlord to stay in his own house was bonafide.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //50//
82. Since the property no. 2222 is not owned by the petitioner and he is occupying this property as a tenant, it cannot be held that need of the petitioner for the tenanted premises is not bonafide and genuine.
83. The respondent has alleged that the petitioner does not bonafide need the tenanted premises for his residence also because there is sufficient accommodation other than the tenanted premises which is available for the petitioner for his requirements. It is pleaded that the petitioner has the following properties:
(ii) Property no. 2290, Kucha Chelan, Daryaganj, Delhi.
(iii)Property no. 2380, Kucha Chelan, Daryaganj, Delhi.
(iv)Property no. 820, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi.
(v) Property No. 853, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi.
(vi)House in Okhla Village, Near Zakir Nagar, New Delhi constructed on plot measuring 300 sq. yards.
(vii)Plot in Okhla Village, Near Zakir Nagar, New Delhi constructed on plot measuring 200 sq. yards.
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //51//
84. With regard to the property no. 2290, Kucha Chelan, Daryaganj, Delhi, it is stated by the respondent in the written statement that it is a double storeyed building in occupation of the petitioner and is constructed on a plot measuring 140 sq. yards having seven rooms, apart from kitchen, bathroom, latrine, open courtyard and open terrace. It is pleaded that the petitioner has concealed this accommodation.
85. With regard to property no. 2380, Kucha Chelan, Daryaganj, Delhi, it is pleaded by the respondent that it is owned by the petitioner and is in his possession. It is averred that even though it is a residential property, the petitioner has illegally established a nickle chromium plating karkhana on the ground floor. It is averred that the upper two floors are being used by the petitioner for his residence and office. It is submitted that this property is constructed on a plot measuring 160 sq. yards.
86. In respect of property no. 820, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi, it is pleaded by the respondent that it is owned by the petitioner and is a three storeyed building, part of which has been rented out and other part is in occupation of the petitioner.
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87. The respondent has stated that property No. 853, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi is a residential property where the petitioner has illegally established a nickle chromium plating karkhana on the ground floor. It is stated that the upper two floors meant for residence are in occupation of the petitioner. It is stated that the petitioner has constructed a tin shed on the terrace of the third floor which is being used by him as a store.
88. The respondent has stated that the petitioner also owns a house in Okhla Village, Near Zakir Nagar, New Delhi constructed on plot measuring 300 sq. yards approximately. It is pleaded that this property has a single storey structure and has five rooms. It is submitted that this house has also been kept by the petitioner for his residence.
89. It is pleaded by the respondent that adjacent to the aforesaid property at Okhla Village, there is a plot measuring 200 sq. yards which the petitioner has kept vacant and not built.
90. It is averred by the respondent that since the petitioner has the aforesaid properties available with him, he does not have a bonafide requirement of the tenanted premises for the purpose of residence for himself Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //53// and his family members.
91. The petitioner has denied that he has the aforesaid properties which are reasonably suitable for his residence with his family. He has denied ownership of these properties except for property no. 2290, Kucha Chelan, Daryaganj, Delhi. With regard to this property, during cross-examination the petitioner has denied that it is built on a 140 sq. yards plot or consists of seven rooms. He has deposed that it is built on a 15/20 sq. yards plot and consists of one shop with one room which is used for business purpose. The petitioner deposed that he works on machine in this property. He further stated that his sons Rizwan Ahmed, Sultan Ahmed, Furkan Ahmed and Irfan Ahmed are also working with him at this property.
92. During cross-examination, the petitioner has denied that he owns property no. 2380, Kucha Chelan, Daryaganj, Delhi, property no. 820, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi, property No. 853, Haveli Azam Khan, Bazar Chitli Qabar, Jama Masjid, Delhi and properties in Okhla Village.
93. The petitioner further testified that he is not aware as to who is running Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //54// factory of nickle Chromium at aforesaid property no. 2830. He clarified that he works at property no. 2290 where his sons are also working with him. He denied that he has any connection with this property and that prior to filing of the eviction petition, he was living at this property where he has now shifted his karkhana.
94. The petitioner admitted during his cross-examination that his parents and brothers are residing at property no. 820. However, he testified that this property is owned by his father-in-law. The petitioner further stated that his brothers live in this property. He denied that he has anything to do with this property.
95. The petitioner further deposed that the aforesaid property no. 853 is also owned by his father-in-law and that his son Sultan Ahmed has set up his factory at this property. During cross-examination, he denied that he has anything to do with this property.
96. The petitioner deposed that his son Noor Ahmad has a factory in Okhla. During cross-examination, he denied that the factory is being run from a residential property. He testified that the locality is an unauthorized colony Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //55// which has neither electricity nor water available. He denied that there is a house in village Okhla constructed on a 300 sq. yards land where his sons are residing.
97. The respondent has not filed any material and documents to substantiate that the aforesaid property no. 2290 is constructed on a plot measuring 140 sq. yards and has seven rooms apart from kitchen, bathroom, latrine, open courtyard and terrace. He has also not placed any material on record to substantiate that the petitioner indeed owns properties no. 2380, 820, 853 and the ones in Okhla which are available for the petitioner's family for their residence. Even if some members of the family of the petitioner are residing in any of these properties, that may be out of compulsion as has been explained by the petitioner in his testimony in which it is stated that due to paucity of space in property no. 2222, he has to depend on his relatives to accommodate his relatives. There is no reason to believe that the properties where the children of the petitioner are residing are owned by them. If the properties are not owned by them and are owned by the father-in-law of the petitioner, same cannot be held to be alternative suitable accommodations for the residence of the family.
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98. In the case of Rajender Kumar Sharma v. Smt. Leela Wati 155 (2008) DLT 383, the Hon'ble High Court of Delhi held that the respondents' tenants have to place on record some material in support of the assertions made. In this context, the following was held by the Hon'ble Delhi High Court in the case of Sarwan Dass Bange Vs. Ram Prakash, 161 (2010) DLT 80:
"The tenant is required to give all the necessary facts and particulars supported by documentary evidence if available to prove his plea in the affidavit itself so that the Controller will be in a position to adjudicate and decide the question of genuine or bonafide requirement of the landlord; a mere assertion on the part of the tenant would not be sufficient to rebut the strong presumption in the landlord's favour that his requirement of occupation of the premises is real and genuine."
99. Even in the case of K.K. Sarin Vs. M/s Pigott Chapman & Co. 46 (1992) DLT 352, the Hon'ble Delhi High Court held that the tenant has to produce material on which he is relying upon. Since no material has been placed on record by the respondent, there is no reason to believe that the petitioner has alternative reasonable accommodation for his family. On the other hand, the tenanted premises can be used by the petitioner's family for their residence. It has been clarified by the petitioner in his testimony that after the tenanted premises is vacated, he will have to carry out additional construction for fulfilling the entire need of residence of the family. Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //57//
100. It is submitted on behalf of the respondent that the petitioner has concealed the properties that he owns. During cross-examination, the petitioner denied that he has deliberately concealed the residential accommodation available to him and his family members. He further denied the suggestion that his sons do not live with him. He denied that his sons are not dependent upon him for residence.
101. The petitioner having failed to mention details of properties owned by him and in particular property no. 2290, Kucha Chelan, Daryganj, Delhi would have been concealment of material facts if these properties would have been suitable to his needs. As has been held hereinabove, none of the properties mentioned in the written statement are alternative reasonable accommodations available with the petitioner for the residence of his family. In the case of Ram Narayan Arora Vs. Aska Rani (1999) 1 SCC 141, it was held that non-disclosure of accommodation which the court agrees cannot be alternate suitable accommodation cannot be fatal to the petition for eviction. The Hon'ble Delhi High Court in the case of Kishan Kumar Dua Vs. Girdhar Gopal Gupta RC Rev. No. 417/2017 dated 05.09.2017 held that for the falsehood, if any practiced by the landlord, the landlord has already suffered Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //58// by being unable to have the order of eviction under the summary procedure and having to wait for several years. It was held that the landlord cannot be penalized more than that by denying him even at this stage the order of eviction, if otherwise found entitled to.
102. In another recent case of Nalini Kant Gupta Vs. Lajja Gupta, 2017 SCC Delhi 10247, it was held that once the tenant has had full opportunity and the parties have gone to trial on all facts, the petition for eviction for self requirement cannot be dismissed on the ground of suppression. It was held that the argument of concealment is not available in as much as no prejudice can be said to have been suffered by the tenant after having an opportunity to lead evidence on all pleas. In the case of Mumtaz Begum Vs. Mohd. Khan RCR No. 78-79/2005 dated 12.01.2009, it was held that non-disclosure of other accommodation available is always not fatal. Therefore, even if the petitioner did not disclose details of other properties owned by him, the same cannot be a reason for dismissing the present petition.
103. Even if it is presumed that the petitioner has other premises available for his requirements as stated in the petition, even then the choice is left to the landlord/petitioner to decide as to which of these premises he should occupy Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //59// and the tenant does not have any say in this matter. In the case of Ragavendra Kumar vs. Firm Prem Machinery AIR 2000 SC 534, the Hon'ble Supreme court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference may also be made to the case of Prativa Devi (Smt) v. T.V. Krishnan (1996) 5 SCC 353.
104. In the case of Sarla Ahuja v. United India Insurance Co. Ltd. AIR 1999 SC 100, the following was held:
" 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 bona-fides of the requirement of the landlord it is quite unnecessary to make an endeavor as to how else the landlord could have adjusted himself..."
105. In the case of Shiv Sarup Gupta v. Dr. Mahesh Chand Gupta AIR 1999 SC 2507, it was held as under:
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //60// "...... The landlord may convince the court that the alternate residential accommodation though available is still of no consequence as the same is not reasonable suitable to satisfy the felt need which the landlord has succeeded in demonstrating objectively to exist. Needless to say that an alternate accommodation, the entail denial of the claim of the landlord, must be reasonable suitable, obviously in comparison with the suitable accommodation wherefrom the landlord is seeking eviction. Convenience and safely of the landlord and his family members would be relevant factors. While considering the totality of the circumstances, the court may keep in view the profession or vocation of the landlord and his family members, their style of living, their habits and the background wherefrom they come..."
106. In the case of Sarwan Dass Bange v. Ram Prakash 167 (2010) DLT 80, the Hon'ble High Court of Delhi referring to the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 held the following:
"...It was held that these restrictions and conditions inculcate in built strong presumption that the need of the landlord is genuine; the conditions and restrictions imposed on the landlord make it virtually improbable for the landlord to approach the court for ejectment of tenant unless his need is bonafide no unscrupulous landlord in all probability, under this section, would approach the court for ejectment of the tenant considering the onerous conditions imposed on him. It was further held that this inbuilt protection in the Act for the tenants implies that whenever the landlord would approach the court his requirement shall be presumed to be genuine and bona fide. It was further held that a heavy burden lies on the tenant to prove that the requirement is not genuine..".
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107. In view of the settled legal position it is not for the respondent to dictate to the petitioner that he should manage his family in any other accommodation, be it the rented accommodation bearing no. 2222 or other properties owned by his relatives, even if they are indeed available with the petitioner. The tenanted premises belongs to the petitioner and it is for the petitioner to see which of his property is suitable for the residence of his family. It is the case of the petitioner that the tenanted premises is suitable for the residence of his family. It is the right of the petitioner to look after the comfort of his family for which he needs the tenanted premises. If the tenanted premises is suitable as per his needs, he has every right to possess the said premises and the respondent cannot contend that he should manage his residence otherwise. While deciding the question of bonafide requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted.
108. The prime question to be answered is that whether the tenanted premises is required bonafide by the landlord for his use or for the use of his family. The petitioner has contended that he requires the premises for the residence of his family. It is stated that the family of the petitioner is currently Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //62// residing in a tenanted premises and in properties owned by relatives. The respondent has contended that the petitioner does not bonafide need the tenanted premises for residence. As has been held by the Hon'ble Delhi High Court in the case of M/s A.K. Woolen Industries and Ors. Vs. Shri Narayan Gupta RC Rev. 495/2017 dated 31.10.2017, in case the petitioner sells the tenanted premises or rents it out at a higher rate of rent after obtaining its possession from the respondent, the respondent herein has the remedy of getting back the possession of the property under Section 19 of the Delhi Rent Control Act.
109. The net result is that petitioner has been able to establish that the tenanted premises is required bonafide by him for the residence of his family dependent on him and he has no other reasonably suitable alternative accommodation for this purpose. The petitioner is entitled for an eviction order. Accordingly, the eviction petition is allowed and order is passed in favour of the petitioner and against the respondent directing the respondent to vacate the tenanted premises i.e. which is ground floor of property bearing no. 848, Gali Godonwali, Haveli Azamkhan, Bazar Chitli Qabar, Jama Masjid, Delhi-110006, more specifically shown in the site plan filed by the petitioner Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif //63// Ex.PW-1/16, in terms of Section 14 (1) (e) r/w Section 25-B of the Delhi Rent Control Act. The landlord however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.
110. No order as to costs. File be consigned to Record Room. Digitally signed by SHIRISH
SHIRISH AGGARWAL
AGGARWAL Date: 2018.03.20
15:00:52 +0530
SHIRISH AGGARWAL
ARC-I, Central District,
Tis Hazari Courts, Delhi
(Announced in open court
on 20.03.2018)
Eviction petition M. No.18/12 Miraj Ahmed Vs. Sh. Mohd. Sharif