Delhi District Court
). Sh. Rajiv Goel vs Rajpal Sharma on 16 March, 2022
IN THE COURT OF MS NITI PHUTELA: RENT CONTROLLER,
SAKET COURTS (SOUTH)
RC ARC No.: 6197/16
1). Sh. Rajiv Goel
S/o Lt. Sh. Bishan Lal Goel
2). Smt Neena Goel
W/o Lt. Sh. Bishan lal Goel
Both R/o H. no. 808, Sec11,
Vasundhra, Gaziabad, UP ..... Petitioners
Versus
Rajpal Sharma
S/o Lt. Sh. Ram Pal Sharma
R/o H. no. 659, Ward no. 5,
Bangla Imli Wala, Mehrauli,
New Delhi ...... Respondents
Date of institution of Suit : 24.02.2020
Date on which order was reserved : 16.02.2022
Date of decision : 16.03.2022
PETITION UNDER SECTION 14 (1) (e) R/W SECTION 25B OF
DELHI RENT CONTROL ACT, 1958
JUDGMENT
1. As per the petition, the case of the petitioners is that Smt Chandan Devi wife of Lt. Sh. Dhan Singh, grandmother of petitioner no.1, purchased the suit property on 23.10.1964 from one person namely Sh. Pritam RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 1/39 Dass for a valid consideration.
2. In the year 1969, there was an oral partition of the properties owned by Lt. Smt. Chandan Devi and Sh. Dhan Singh amongst their legal heirs. The property bearing no. 659, Ward no. V, Bangla Imli Wala, Mehrauli, Delhi (herein referred as 'tenanted premises'), consisting of two rooms, one kitchen, one bathroom, one latrine and open court yard fell to the share of Sh. Bishan Lal Goel I.e father and husband of the petitioners respectively.
3. In the year 1970, Sh. Bishan Lal Goel, letout the property in question to respondent for residential purpose. Sh. Bishan Lal Goel died on 28.09.1971, leaving behind his wife Smt Neena and his sons namely Sh. Sushil Goel, Sh. Sanjeev Goel and Sh. Rajiv Goel.
4. After the death of Sh. Bishan Lal Goel, respondent started paying rent to petitioner no.2. On 31.05.2000, respondent paid sum of Rs. 480/ as rent for the period 01.01.1999 till 31.12.1999 @ Rs. 40/ pm, apart from electricity and water charges.
5. As per petitioners, there was further oral partition amongst the legal heirs of Lt Sh. Bishan Lal Goel. The tenanted premises fell into the share of petitioner no.1. Petitioner no.2 has been impleaded to avoid any objection, as rent receipts were issued by petitioner no.2. Further, as per them, petitioner no.2 and other legal heirs have no objection if the petition is proceeded by petitioner no.1 as he is the actual owner of the property. They also executed a partition deed in respect of the suit property duly registered before the SubRegistrar.
6. It is the case of petitioners that petitioner no.1 is residing in Gaziabad and is having business of transport. Petitioner no.1 owns buses which RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 2/39 are being run by him as chartered buses from Badarpur, Okhla, Delhi to Dilshad Garden. For the said purpose, petitioner no.1 has to go from Badarpur to Gaziabad from his present residence during late hours. For the said reason it has become impossible for him to run his business smoothly and health and business of petitioner no.1 is getting affected badly. Due to the above said reason, petitioner no.1 is not in a position to look after the needs of his family which includes the education of his son as well as ill health of his mother. Thus, it is averred that in these circumstances, it is the most suitable property near to place of his business and for residence of his family. Therefore, as per him, he requires the tenanted premises bonafidely for his use.
7. It is also alleged that respondent had constructed one room in the property without permission of petitioners.
8. Hence, petitioners have filed the present petition, praying for passing an eviction order in their favour in respect to the tenanted property bearing no. 659, Ward no. V, Bangla Imli Wala, Mehrauli, Delhi as shown in red colour in the site plan.
9. In response to the aforesaid petition, respondent filed an application under Section 25B of DRC Act for grant of leave to defend, which was allowed by the Ld. Predecessor of the Court vide order dated 27.05.2013.
10. Subsequently, written statement was filed by respondent.
11. An application for amendment of petition was moved by petitioner for change of name of respondent, which was allowed vide order dtd 22.05.2014. Amended WS was also filed on record.
RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 3/3912. In the amended WS filed by respondent, it is alleged that the present petition is filed against Sh. Ram Pal Sharma, who has no concern with the property as he is neither the licensee nor tenant or occupant of premises in question and is a stranger. It is further alleged that Sh. Raj Pal Sharma is a lawful tenant @ Rs. 40/ per month. As per him, the present petition has been deliberately filed by the petitioners against wrong person merely to obtain a favorable order of eviction against the lawful tenant i.e. Sh. Raj Pal Sharma.
13. As per him, the petitioners are not the owners of the premises in question. He alleged that there is no landlord tenant relationship between the petitioners and the alleged respondent Ram Pal Sharma.
14. It is the further version of respondent that Sh. Anil Goel and Sh. Sushil Goel were borne from the first wedlock of the deceased Bishan Lal Goel with his first wife, whereas Sh. Rajiv Goel and Sh. Sanjeev Goel were borne from the second marriage of Sh. Bishan Lal Goel with Smt Neena Goel.
15. On the basis of above said facts, another ground raised by respondent for challenging the said petition is that the other coowners of the suit property namely Sh. Sanjeev Goel, Sh. Shushil Goel and Sh. Anil Goel, who are the sons of original landlord Sh. Bishan Lal Goel, are not impleaded as the parties to the case due to which present petition is not maintainable.
16. He alleged that the petition is devoid of any cause of action and petitioners have concealed the material facts due to which petition is liable to be rejected under Order 7 Rule 11 (a) CPC.
RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 4/3917. It is also alleged that petitioners have failed to disclose that they have filed another petition under Section 14 (1) (h) of DRC Act, against the respondent on 31.05.2014, wherein the petitioner has falsely alleged the property in question to be residential. In the said case, respondent has filed the WS verifying the status that the property is not residential in nature. He has also alleged in the said WS that his wife Smt. Usha Sharma was running a grocery shop from the said tenanted premises for last many years. Thus, as per him, the property is commercial in nature. It is alleged that even the adjoining properties are being used for commercial purposes.
18. It is further his version that petition is not maintainable as petitioners are even not aware about the actual and correct construction on the premises as they have wrongly alleged in the petition that respondent is in possession of two room, one kitchen, one bathroom, one latrine and one courtyard as shown in the site plan filed by them. As per him, petitioner has sought part possession of the premises in question and has intentionally not disclosed the correct and actual construction of the entire premises.
19. It is also alleged that the ground raised by petitioners for seeking the eviction order on the basis that premises are required by them for smoothly running the business of chartered buses is not tenable because the alleged business has already been shut and this fact is even acknowledged by the petitioners before the present court by stating that they are not plying any buses on the road as the buses have already been declared unfit for the road. Thus, as per him, the petition has become RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 5/39 infructuous.
20. He has also alleged that no document has been placed on record by petitioner showing any ownership of the buses as claimed. Further, he has alleged that transporter is not required to visit where the buses are required to ply and he is not required to reach every spot from where the buses pass.
21. As per him, the suit property is situated in a very narrow lane/gali having width of 5' from where two persons cannot pass by comfortably. Therefore, petitioners will not be able to park the buses nearby the property. It is his version that the distance between Badapur and Dilshad Garden is about 24 Kms while distance between Dilshad Garden and Mehrauli is about 40 Kms. Therefore, as per him, petitioner no.1 never used to go to Badarpur and he remains at Dilshad Garden to attend his trading business. It is further his version that it is not believable that petitioner no.1 will come from Mehrauli either from Badarpur or from Dilshad Garden for the sake of his residence.
22. It is also alleged that petitioners have suppressed material fact that petitioner no.1 is an active partner in firm M/s Cool Air Conditioning at H69 A Dilshad Garden Delhi who is regularly attending the said business along with Sh. Sanjeev Goel. He even relied upon the photocopy of cash memo bearing no. 4557 in support of the said contention.
23. It is also alleged that when the premises were let out, the same were in dilapidated condition and two rooms were constructed with the consent of Lt. Sh. Bishan Lal Goel. Thereafter, third room was also constructed RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 6/39 with the consent of petitioner no.2. Therefore, the fact that the third room was constructed without the consent of petitioners is false.
24. It is also alleged that the petition is not maintainable as petitioners are having various other properties which are more than sufficient and rather surplus to meet the requirements of petitioner.
25. As per him, petitioners are having property bearing no. 808, Sec 11, Vasundhra, Gaiziabad, UP, property bearing no. 658 Road No. V, Mehrauli, New Delhi, admeasuring 200 Sq yards (which is still in physical possession of petitioner no.1). As per him, the petitioners have stated that the said property is in unlawful possession of Sh. Ganga Ram. Apart from that petitioners have also property at Cross Road, Sant Nagar, Burari admeasuring 300 Sq yards, residential property bearing no. H 86, C, Dilshad Garden, R51 LIG Dilshad Garden and property bearing no. 759, Extn1, Shalimar Garden, Gaziabad, UP in their possession.
26. As per him, petitioners want to relet the property at higher rental or want to sell it at higher price due to which present petition has been malafidely filed. In this background, it is alleged that the petition is liable to be dismissed.
27. In the replication filed by petitioners, they denied all the averments of respondents as averred in the WS and reiterated and reaffirmed the facts alleged in petition.
28. They also stated that mentioning of wrong name of respondent as Ram Pal Sharma is merely a clerical error which has already been rectified.
RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 7/3929. As per them, Sh. Anil Kumar Goel had already executed an SPA in favour of Sh. Sushil Kumar Goel who had in turn had given undertaking to the effect that suit property falls under the share of petitioner no. 1. Therefore, there was no requirement of impleading Sh. Anil Kumar Goel as a party to the present petition.
30. It is further the version of petitioners in respect to the bonafide need of the property for residence purpose of petitioner no. 1 that respondent cannot dictate the petitioner that in what manner he has to run his business. It is also alleged that the narrow width of the lane will have no effect on the said need of the petitioners as the issue is not of parking of the bus but of running of smooth business by residing near the place of business as the distance between Mehrauli and Badarpur is not far off.
31. They have averred that respondent himself had purchased 2304 sq.ft out of property no. 500 and 527B in ward no. 5, measuring 256 sq.yd in Khasra No. 1151/3 min, situated in Abadi of Lal Dora, village Mehrauli as purchased from Sh. Anubhav Goel. It is registered in the name of wife and sons of respondent vide sale deed dated 15.09.2010. Hence, as per them, respondent is not in dire need of the tenanted premises as he has other properties available with him.
32. In respect to the property bearing no. 658, it is stated that the same is not admeasuring 200 sq.yds but 174 sq.yds. Out of which, 60 sq.yds had been sold out to Smt. Sumitra Chawla and 70 sq.yds to Smt. Meena Arora on 25.10.2004 by registered sale deed. Thus, in total 130 sq.yds are not owned by petitioner no. 1. Remaining 44 sq.yds are not put to any use as there is no passage for entrance to the said land except out of RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 8/39 the tenanted property. Moreover, towards the said area of 44 sq.yds, one person namely Gangu has opened his window and installed a door there. For making the said portion of 44 sq.yds worth living, the petitioners will require the property in question.
33. As far as property at Cross Road, Sant Nagar, Buradi is concerned the same was not admeasuring 300 sq.yds but 200 sq.yds which has already been sold way back in 2008. Further, House No. H86C, Dilshad Garden was sold by Sh. Sushil Goel and he purchased property no. R 41, LIG, Dilshad Garden. Property no. 11/808 is owned by petitioner no. 2 and property no. 759 Shalimar Garden is owned by Sh. Sanjeev Goel. Hence, as per petitioners, petitioner no. 1 has no right title or interest in the above said properties.
34. After completion of pleadings, matter was fixed for petitioner's evidence.
35. In support of their case, petitioners examined petitioner no.1 as PW1.
He tendered his affidavit which is Ex.PW1/A. He relied upon documents i.e. partition deed which is Mark A1, site plan which is Ex.PW1/2, rent receipts which are Ex.PW1/3(OSR), power of attorney dtd 18.03.2004 is Ex.PW1/4(OSR), power of attorney dtd 20.02.2010 is Ex.PW1/5, copy of the RC and permit is Ex.PW1/6(Colly)(OSR), copies of the three challans and one challan deposit receipt are Mark A2 (Colly), Sale deeds dtd 25.10.2004 are Ex.PW3/2, and Ex.PW3/3, photographs are Mark A3(Colly), copy of sale deed for Rs.1,50,000/ is Mark P1, Sale Deed dtd 15.09.2010 is Ex.PW3/10. He was cross RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 9/39 examined by Ld Counsel for respondent and was discharged.
36. PW2 Sanjeev Goel tendered his affidavit which is Ex.PW2/A. He relied upon documents i.e. income tax Saral form and sales tax registration which are Ex.PW2/1(OSR) and Ex.PW2/2(OSR) respectively. He was crossexamined by Ld Counsel for respondent and was discharged.
37. PW3 Sumit Kumar, DEO from office of Sub RegistrarV, Mehrauli was a summoned witness, who brought on record sale deed registered vide registration no. 16840 in book no. 1, Vol no. 10541 on pages 137 to 143 dtd 15.09.2010, sale deed registered vide registration no. 13705 in book no. 1, Vol no. 4405 on pages 1 to 7 dtd 25.10.2004 and sale deed registered vide registration no. 13706 in book no. 1, Vol no. 4405 on pages 8 to 13 dtd 25.10.2004. The copies of the said registered sale deeds are Ex.PW3/1, ExPW3/2 and Ex.PW3/3 respectively. He was crossexamined by Ld Counsel for respondent and was discharged.
38. No other witness was got examined by petitioners, hence, PE was closed.
39. Respondents in their evidence examined RW1 Sh. TP Singh, Head Clerk, DJB, ZRO, Saket, was a summoned witness, who brought on record, water bill in the name of Sh. Raj Pal Sharma S/o Sh. Ram Lal. As per the said witness, the water connection is still in existence at 659, Ward no.5, Mehrauli. The copy of the said bill is Ex.RW1/A. He also brought the original allotment register from SI no. 2212 to 579 in which the relevant entry in respect of water connection of Sh. Raj Pal Sharma is at SI No. 4236, copy of which is Ex.RW1/B. He was crossexamined RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 10/39 and discharged.
40. RW2 Sh. Badri Prasad, SDE, MTNL, Hauz Khas, was a summoned witness, who brought record pertaining to MTNL no. 26644199, old no. 26519318, which was alloted in the name of Sh. Raj Pal Sharma at H. no. 659, Ward no. 5, Mehrauli. As per the said witness, the old connection was alloted in the name of Sh. Raj Pal Sharma on 21.03.1996. The new number was alloted by Hauz Khas Exchange on 11.04.2001 at the same address of Sh. Raj Pal Sharma. He also brought the letter in name of court dtd 13.11.2018 attested by Commercial Officer MTNL, Hauz Khas along with record signed by SDE (Record), Hauz Khas and history sheet of the above said landline telephone connection. The said documents are Ex.RW2/A(colly). He was cross examined and discharged.
41. Respondent himself stepped into the witness box and was examined as RW1. However, as one witnessed was already examined as RW1 therefore, repondent be read as RW3. RW3 Raj Pal Sharma entered the witness box and tendered his affidavit which is Ex.RW1/A (the said affidavit be read as Ex.RW3/A as affidavit of RW1 was also numbered same). He relied upon six photographs which are already Ex.PW2/R1 to Ex.PW2/R5 and photocopy of one cash memo, which is Mark A. He was crossexamined by Ld Counsel for respondent and was discharged.
42. No other witness was got examined by respondent, hence, RE was closed vide order dtd 03.12.2021.
43. I have heard the final arguments addressed by ld. Counsel for petitioners. I have also gone through the evidence on record very RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 11/39 carefully.
44. The present petition has been filed u/s 14 (1) (e) DRC Act. Section 14 (1) (e) DRC is reproduced below: "Section 14 (1) (e): Notwithstanding anything to the contrary contained in any other law or contract, no order of decree for the recovery of possession of any premises shall be made by any court or Controller in favour of the landlord against a tenant:
Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:
(e) That the premises let for residential purposes are required bona fide by the landlord for occupation as a residence for himself or for any member of his family dependent on him, if he is the owner thereof, or for any person for whose benefit the premises are held and that the landlord or such person has no other reasonable suitable residential accommodation."
45. In order to succeed in the case u/s 14 (1) (e) of DRC Act, the petitioners are required to prove the following ingredients
(a) Ownership in respect of tenanted premises
(b) Relationship of landlord and tenant between the parties;
(c) Petitioners require the tenanted premises for their bonafide need and necessity or necessity of their family members
(d) Petitioners do not have any other alternative accommodation with them/him/her.
OWNERSHIP IN RESPECT OF TENANTED PREMISES AND RELATIONSHIP OF LANDLORDTENANT BETWEEN THE PARTIES:
RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 12/3946. Respondent had taken preliminary objection that petition has been filed against stranger to property as Sh Ram Pal Sharma has no concern with the property.
47. It is pertinent to mention for the purpose of clarity that initially the petitioner had filed the petition against Ram Pal Sharma, however, when the objection was taken by respondent, amendment application was moved for correcting the name of respondent, which was allowed by Ld Predecessor Judge vide order dtd 22.05.2014. Amended WS was also filed on record. The said objection raised by respondent that the petition has been filed against a stranger is thus, not surviving. Therefore, there is no requirement of any further discussion on the said objection.
48. Petitioners have alleged themselves to be the owners of tenanted premises in question on the ground that the said property fell into the share of both petitioners, Sh Sushil Kumar and Sh. Rajeev Kumar being LRs of Late Sh. Bishan Lal Goel (who was father of petitioner no.1 and husband of petitioner no.2), in the partition which took place between them and family members of Late Sh. Bishan Lal Goel. Copy of the said partition deed is Mark A1. Thereafter, it fell into share of petitioner no.1 in the oral partition amongst the LRs of Late Sh. Bishan Lal Goel. The petitioners also relied upon power of attorney dtd 18.03.2004 which is Ex.PW1/4, executed by Sh. Anil Goel in favour of his other brother namely Sh. Sushil Goel, to deal with his share in the tenanted premises. Apart from that, petitioners also filed copy of power of attorney dtd 20.02.2010 which is Ex.PW1/5 as executed by petitioner no.2, Sh. Sushil Goel and Sh. Sanjeev Goel in favour of RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 13/39 petitioner no.1.
49. The abovesaid documents show that the other brother of petitioner no.1 namely Anil Goel had authorized Sh. Sushil Goel to deal with property in question, who in return by exercising the said power granted to him, executed the power of attorney in favour of petitioner no.1. Thus, all the legal heirs of Sh. Bishan Lal Goel authorized petitioner no.1 to deal with the property in question.
50. Respondent has challenged the ownership of petitioners on the ground that the other coowners i.e. legal heirs of Sh. Bishan Lal Goel namely Sushil Goel, Anil Goel and Sanjeev Goel have not been impleaded as a party to the petition due to which the petition is bad for nonjoinder of necessary parties.
51. It has been held in a catena of judgments of the Hon'ble Supreme Court and more specifically in Kanta Goel vs. D.P. Pathak, 1979 (1) RCR (Rent) 485; (1977) 2 Supreme Court cases 814 and Pal Singh vs. Sunder Singh 1989 (2) RCR (Rent) 331; : (1989) 1 Supreme Court cases 444; that:
"one of the coowners can alone and in his own right, file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other coowners were not joined as parties to the suit. When several owners own the property forming the subject matter of the eviction proceedings every coowner owns every part and every bit of the joint property along with others and it can not be said that he is only a partowner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of the tenant without joining the other coowners if such other coowners do not object...".RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 14/39
52. In his regard, it is relevant to mention judgment in case titled Seshasyana Rao & Ors Vs. Manuri Venkatesa Rao & Ors AIR 1954 Madras 531, it has been held therein : "When a building belonging to a joint family is leased, the landlord is not an abstract juristic entity called 'joint family', but the members who constitute that family. When a coparcener, therefore, applies for possession under section 7 (3) (a) (I), he will be entitled to an order.....
13. I am unable to agree with this contention.
Though it may be possible to regard a Hindu joint family as a juristic person for some purpose, it cannot, in my opinion, be held to be a landlord for purposes of section 7 (3) (a) (I) of the Act. That section enacts that the landlord may apply for possession of a residential building, if he requires it for his own occupation, provided he is not occupying a residential building of his own, in the same place. Now a juristic person cannot, in the context, be aptly described as occupying a residential building; it is only in the case of a natural person that the question of residence can arise. A joint family regarded as a juristic entity, can, therefore, have, as such, no residence. It is only its members that can reside in a building.
This is further made clear by the use of the word 'he' in the section; a joint family as juristic person is neither a 'he' nor a 'she'. The true position is, that when a building belonging to a joint family is leased, the landlord is not an abstract juristic entity called 'joint family', but the members who constitute that family. When a corparcener, therefore, applies for possession under section 7 (3) (a) (I), he will be entitled to an order, if he establishes that he requires the house for his ow occupation, and he is not disentitled to that relief by reason of the fact that the family owns another house and members of the family are residing there, if he is himself not in occupation of it."
53. Reliance in also placed in Sri Ram Pasricha V. Jagannath & Ors (1976) 4 SCC 184, it was held that: RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 15/39 "A coowner can succeed in the petition for eviction without impleading all the other co owners. It is not necessary that landlord should be an absolute owner. Since coowner owns every part of the composite property alongwith others, therefore, it cannot be said that he is only a part owner or a fractional owner."
54. In the case in hand, by executing power of attorney Ex.PW1/5 in favour of petitioner no.1, the rest of the LRs of Late Sh. Bishan Lal Goel had given no objection in favour of him to file the present petition.
55. Hon'ble Supreme Court in M/s Indian Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors., AIR 2004 1321, went a step ahead and opined that even if no prior no objection is obtained from the remaining cosharers then also the petition is maintainable. It was held that:
"The consent of other coowners is assumed to be taken unless it is shown that the other coowners were not agreeable to the ejectment of the tenant and suit/petition for their eviction was filed despite their disagreement." The respondent has not been able to show that the remaining cosharers are not agreeable to the ejectment.
56. From the above decisions, it is evident that all the coowners need not be impleaded as party to the petition.
57. Further, to show the landlord tenant relationship, petitioner no.1 on being crossexamined as PW1 also filed on record, rent receipts issued by petitioner no.2 which are Ex.PW1/3(colly). The said rent receipts are nowhere denied by the respondent.
58. The fact that Sh. Bishal Lal Goel was the erstwhile landlord is categorically admitted by respondent himself in the WS. It is also the RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 16/39 admitted fact on the part of respondent that after the death of Sh. Bishan Lal Goel, he continued residing in the tenanted premises as tenant with permission of petitioner no.2.
59. In this regard, respondent on being crossexamined as RW3 admitted that he was paying rent to petitioner no.2 against issuance of rent receipt which is Ex.RW1/P1. He also admitted that the rent receipts used to be countersigned by him and the counterfoil used to be delivered to him. He also admitted that petitioner no.1 is the son of Sh. Bishan Lal Goel and no other legal heirs of Sh. Bishan Lal Goel had approached him raising any dispute about entitlement of petitioner no.1.
60. Hence, it is clear and evident on record that respondent has categorically admitted landlordtenant relationship with the erstwhile owner Sh. Bishan Lal Goel and thereafter the same relationship continued with petitioner no.2, who is wife of Lt. Sh. Bishan Lal Goel.
61. Thus, it is evident that the status of defendant in the property is that of a tenant.
62. Section 116 of Indian Evidence Act bars respondent from disputing the title of landlord who had inducted him as tenant. It is reproduced below: "Section 116 No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 17/39 possession at the time when such licence was given."
63. It has been held in Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RCR No. 136/12 that:
"It is settled law that in the context of Delhi Rent Control Act, what appears to be the meaning of the term 'owner' is that visavis the tenant i.e. the owner should be something more than the tenant."
The position in law is that "The ownership" of the landlord for the purpose of maintaining a petition U/Sec. 14(1)(e) of the D.R.C. Act is not required to be a absolute ownership of the property and it is sufficient if the landlord is a person who is collecting the rent on his own behalf.
64. It was observed in "Shanti Sharma Vs. Smt. Ved Prabha" [AIR 1987 SC 2028] that:
"the term "owner" has to be understood in the context of the background of the law and what is contemplated in the scheme of the Act. The Act has been enacted for protection of the tenants. But, at the same time, it has provided that the landlord under certain circumstances will be entitled to eviction and bona fide requirement is one of such grounds. Ordinarily, the concept of the ownership may be absolute ownership in the land as well as of the structure standing thereon. But in the modern context, where all lands belong to the State, the persons who hold properties will only be lessees or the persons holding the land on some term from the Government or the authorities constituted by the State. The legislature, when it used the term "owner" in s. 14(1)(e), did not think of ownership as absolute ownership. The meaning of the term "owner" is visavis the tenant i.e. the owner should be something more than the tenant."
65. In the judgment tiled as Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:
RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 18/39"....It is settled preposition of law that in order to consider the concept of ownership under Delhi Rent Control act, the Court has to see the title and right of the landlord qua the tenant. The only thing to be seen by the Court is that the landlord had been receiving rent for his own benefit and not for and on behalf of someone else. If the landlord was receiving rent for himself and not on behalf of someone else, he is to be considered as the owner, howsoever imperfect his title over the premises may be. The imperfectness of the title of the premises cannot stand in the way of an eviction petition under Section 14(1)(e) of the DRC Act, neither the tenant can be allowed to raise the plea of imperfect title or title not vesting in the landlord and that too when the tenant has been paying rent to the landlord. Section 116 of the Evidence Act creates estoppels against such a tenant. A tenant can challenge the title of landlord only after vacating the premises and not when he is occupying the premises. In fact, such a tenant who denies the title of the landlord, qua the premises, to whom he is paying rent, acts dishonestly....."
66. In Sheela and ors Vs. Firm Prahlad Rai Prem Parkash, (2002) 3 SCC 375, it has been held:
"In rent matters the burden of proving ownership on a landlord is not that heavy as it is in a title suit and even a lessor quantum of proof may suffice for holding that the landlord is the owner of the premises in question."
67. In Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar, 79 (1999) DLT 210, it has been held as under:
"in case of a petition u/s. 14 (1) (e) of the Act, in order to show the ownership, it is not necessary to show absolute ownership. The legislature used the word "owner", in section 14(1) (e) not in the sense of absolute owner, but it was used in contra distinction with a landlord as defined in the Act who is not an owner but who owns the property RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 19/39 for the benefit of another person and merely collects the rent. If the person collected the rent for himself and for his own benefit and the property is his own even in the loose sense and no one is claiming rights over the property, then he is considered as owner for the purpose of section 14 (1) (e) of the Act. Even possessory rights over the property of a person have been given recognition as ownership visa vis tenant under Delhi Rent Control Act."
68. From the above decisions, it is evident that the landlord is not supposed to prove absolute ownership. Therefore, it is no more res integra that in a petition between landlord and tenant, it is only the title as "landlord" which is relevant and not the title as "owner".
69. Apart from the above said grounds, respondent has also denied the fact the property in question was let out for residential purpose. It is alleged by the respondent in the WS that the property was letout for commercial purpose and his wife is running a grocery shop for last many years.
70. In this regard on being crossexamined as RW3, the respondent admitted that the property was letout for residential purpose. He again changed his version stating that it was for a composite purpose. He stated that his wife started running a shop in the year 1990 with the permission of erstwhile owner Sh. Bishan Lal Goel. On being cross examined regarding the year of death of Lt Sh. Bishan Lal Goel, he admitted that Sh. Bishan Lal Goel expired in the year 1971. This shows that alleged shop (i.e the commercial activity) which is being run by wife of respondent was not started with permission of the erstwhile owner as the erstwhile owner had expired in the year 1971, whereas the RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 20/39 shop was started by wife of respondent in the year 1990.
71. he also admitted that in the rent receipts Ex.RW1/P1 word 'rehayshi' is mentioned. It the mater of common knowledge that 'rehayshi' means 'residential' and 'not commercial'. Hence, the ground raised by respondent that the tenancy in question was for commercial purpose due to which DRC is not applicable is not tenable. Moreover, though it is not proved by respondent that the tenancy was for commercial purpose, however, after the judgment of Hon'ble Supreme Court titled Satyawati Sharma v. UOI decided on 16.04.2008, DRC Act is even applicable on commercial tenancies.
72. Hence, in view of the aforementioned discussion, it has to be concluded that petitioners have proved on the basis of preponderance of probability that there exists relationship of landlord and tenant between them and respondent as well as the fact that they are owners of tenanted premises.
PETITIONER NO.1 REQUIRES THE TENANTED PREMISES FOR BONAFIDE NEED AND THE PETITIONER DOES NOT HAVE ANY OTHER ALTERNATIVE ACCOMMODATION WITH HIM:
73. To ascertain the bonafide requirement of the petitioner, this court needs to adjudicate that whether the need of the landlord is genuine and honest and conceived in good faith. It must be a reasonable requirement as opposed to a mere desire or wish.
74. It has been held in case of Shiv Sarup Gupta vs. Dr. Mahesh Chand Gupta AIR 1999 SC 2507; by the Hon'ble Supreme Court that: RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 21/39 "Chambers 20th Century Dictionary defines bonafide to mean 'in good faith: genuine'. The word 'genuine' means 'natural': not spurious: real:
pure :sincere'. In Law Dictionary, Mozley and Whitley define bonafide to mean 'good faith, without fraud or deceit'. Thus the term bonafide or genuinely refers to a state of mind. Requirement is not a mere desire. The degree of intensity contemplated by 'requires' is much more higher than in mere desire. The phrase 'required bonafide' is suggestive of legislative intent that a mere desire which is outcome of whim or fancy is not taken note of by the Rent Control Legislation. A requirement in the sense of felt need which is an outcome of a sincere, honest desire, in contradistinction with a mere pretence or pretext to evict a tenant, on the part of the landlord claiming to occupy the premises for himself or for any member of the family would entitle him to seek ejectment of the tenant. Looked at from this angle, any setting of the facts and circumstances protruding the need of landlord and its bonafides would be capable of successfully withstanding the test of objective determination by the court. The Judge of facts should place himself in the arm chair of the landlord and then ask the question to himself whether in the given facts substantiated by the landlord the need to occupy the premises can be said to be natural, real, sincere, honest. If the answer be in the positive, the need is bonafide. The failure on the part of the landlord to substantiate the pleaded need, or, in a given case, positive material brought on record by the tenant enabling the Court drawing an inference that the reality was to the contrary and the landlord was merely attempting at finding out a pretence or pretext for getting rid of the tenant, would be enough to persuade the Court certainly to deny its judicial assistance to the landlord. Once the court is satisfied of the bonafides of the need of the landlord for premises or additional premises by applying objective standards then in the matter of choosing out of more than one accommodation available to the landlord his subjective choice shall be respected by the court. The Court would permit the landlord to satisfy the proven need by choosing the RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 22/39 accommodation which the landlord feels would be most suited for the purpose; the Court would not in such a case thrust its own wisdom upon the choice of the landlord by holding that not one but the other accommodation must be accepted by the landlord to satisfy his such need. In short, the concept of bonafide need or genuine requirement needs a practical approach instructed by realities of life. An approach either too liberal or two conservative or pedantic must be guarded against."
75. Thus, the question of bonafide need and necessity will be adjudicated on the basis of the aforementioned proposition of law.
76. The main ground on the basis of which the petitioners have filed the petition is that petitioner no.1 is having transport business of chartered buses. The said buses are operating on the route from Badarpur to Dilshad Garden via Okhla and vice versa. He is presently residing at Dilshad Garden but he requires the tenanted premises for residential purpose, which is situated at Mehrauli, being near to the route of the buses i.e. Badarpur as he is not in a position to look after the needs of his family and his health and business are getting effected. Thus, the property in question is more suitable to him for his residential purpose.
77. Respondent has opposed the said ground stating as follows:
(i). That the business which was allegedly run by petitioner has already been shut and the buses have been scrapped down. As per him, due to the said fact, the petition has become infructuous. Further, no document has been filed by petitioner in respect to the said alleged business. He alleged that, transporter is not required to visit the place where buses ply and he is not required to run here and there from where the buses pass through.RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 23/39
(ii). That the gali in which property is situated is a very narrow lane/ gali having width of 5' from where even two persons cannot pass comfortably, therefore, petitioner will not be able to park the buses nearby the property.
(iii). That petitioner has given wrong details of his business and has suppressed the fact that he is partner in firm M/s Cool Air Conditioning at H69 A, Dilshad Garden, New Delhi. As per him, petitioner no.1 is an active partner in the said firm and is regularly attending the said business which is clear from the photographs and the cash memo filed by him.
78. In view of the said grounds, it is to be first seen that whether petitioner is actually having bonafide need due to his business, to shift to Mehrauli or not. In this regard, petitioner filed copy of RC and permit which are Ex.PW1/6(colly), three challan and one challan deposit receipt in respect to bus bearing registration no. DL1PA2821 which are Mark A2.
79. While being crossexamined as PW1, petitioner no.1 admitted that he was running the business of transportation but he was having only one bus at a time and not more than that. He admitted that the permit of the said bus was valid up to 25.02.2014 and the said bus has already been declared unfit to ply on road as it was manufactured in the year 1998. It completed its period of 15 years to ply on road in the year 2013. He also admitted that he had already got the bus scrapped. However, he volunteered that he had again purchased bus bearing registration no. DL1PB1468. He brought on record the documents in respect to the said bus, the RC of which along with other documents i.e. logbook, RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 24/39 insurance etc., are Ex.PW1/11(Colly) running into 28 pages. He admitted that the said bus was purchased by him after filing the petition but the fact regarding the said bus is not mentioned in his affidavit.
80. He also admitted that the photographs Ex.P1/D1 to Ex.P1/D5, which were shown to the witness were of the said bus which was owned by him. He further admitted that in the said photographs, it is reflected that on the bus it is mentioned 'Yashraj Travels'. He clarified that 'Yash' is the name of his nephew and 'Raj' is his own name and the business is therefore, being operated in the name of 'Yashraj Travels'.
81. He also admitted that it can be seen from the said photographs that the bus is operating as school bus for DAV School. He alleged that he was not having any contract with DAV School but the contract was with Sneh Travels. He even specified the timings on which bus was operating as a school bus and on other time it was being used as chartered bus for passengers from Dilshad Garden to Badarpur and viceversa.
82. He stated that he used to park the bus at Red Cross Hospital in Dilshad Garden. On being questioned regarding the address mentioned in the RC and Insurance of the above said bus which was D/2, LIC Jeevan Sathiya, Staff Quarter AQ Block, he clarified that said address was mentioned in the RC because the said property was allocated to her mother as she was working at LIC but the property was not in their possession for the last 23 years. He even clarified on being cross examined that the address i.e. Kalandar Colony in the logbook, which is forming part of documents Ex.1/11(Colly), was that of his driver. He admitted that the test report, CNG leakage test and safety checks RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 25/39 forming part of abovesaid documents from page no. 9 to 16, in the same, there was no mention regarding the person in whose favour the said report was issued. He also admitted that the AMC dtd 28.08.2010 was in the name of Sh. Manoj Sharma, however, he clarified that in the said document, the name of erstwhile owner Sh. Manoj Sharma was mentioned and he himself had not applied for fresh AMC after purchasing of the vehicle.
83. He further admitted in his crossexamination that manufacturing date of bus bearing registration no. DL1PB1468 is of 2001 and the same has also been scrapped and is not on road. He admitted that though he is not the owner of any bus at the date on which crossexamination was conducted, however, as per him, the said bus got scrapped only 15 days back and he was searching for purchase of new bus.
84. The abovesaid facts admitted by PW1 supported with the documents Ex.PW1/6(colly) and Ex.PW1/11(colly) relied upon by him, prima facie reflects that petitioner is having business of plying of bus on Badarpur to Dilshad Garden route. Respondent has not been able to disprove the said fact.
85. As far as the objection of respondent is concerned that the petition has become infructuous on the ground that he was not operating any business of bus as the bus got scrapped, in this regard, it is relevant to mention the judgment of Hon'ble Supreme Court in case titled D. Sasi Kumar Vs Soundararajan decided on 23.09.2019, where it has been held by Supreme Court in para no.11 which is quoted below:
11. Further the High Court has also erroneously arrived at the conclusion that the bonafide RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 26/39 occupation as sought should be not only on the date of the petition but it should continue to be there on the date of final adjudication of rights. Firstly, there is no material on record to indicate that the need as pleaded at the time of filing the petition does not subsist at this point. Even otherwise such conclusion cannot be reached, when it cannot be lost sight that the very judicial process consumes a long period and because of the delay in the process if the benefit is declined it would only encourage the tenants to protract the litigation so as to defeat the right. In the instant case it is noticed that the petition filed by the landlord is of the year 2004 which was disposed of by the Rent Controller only in the year 2011. The appeal was thereafter disposed of by the Appellate Authority in the year 2013. The High Court had itself taken time to dispose of the Revision Petition, only on 06.03.2017. The entire delay cannot be attributed to the landlord and deny the relief. If as on the date of filing the petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time lapse in the judicial process coming to an end. This Court in the case of Gaya Prasad vs. Pradeep Srivastava, (2001) 2 SCC 604 has held that the landlord should not be penalised for the slowness of the legal system and the crucial date for deciding the bonafide requirement of landlord is the date of application for eviction, which we hereby reiterate.
86. In view of the above said judgment, the need of the petitioner at the date of filing of the petition is to be seen. In the case in hand, petitioner has been able to show that that at the time when petition was filed, at that time, transport business was operating and bus of petitioner was plying. Thus, the bonafide need whether existing or not at the date of order, is immaterial.
87. Now coming to the objection of respondent that there is no bonafide RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 27/39 requirement on the ground that petitioner is residing at Dilshad Garden and he is not necessarily required to be close to the place of business, in this regard, it is relevant to mention the judgments of Hon'ble Superior Courts. In Adarsh Electricals & Ors. vs. Dinesh Dayal 173 (2010) DLT 518, it has been held that "It is settled law that, "the question of accommodation, actually in possession of the landlord, being 'reasonably suitable' is to be judged solely in the context of physical sufficiency of the accommodation and that the Court may hold that accommodation is insufficient having regard to various circumstances, such as, the social status of the family or traditions and customs observed by it. As long as the landlord is able to establish that he in good faith and genuinely wishes to occupy the premises in possession of the tenant and that good faith or genuineness is of a reasonable man, it would not be open to the Controller to weigh the claim of the landlord in a fine scale.
The law does not require the landlord to sacrifice his own comforts and requirements merely on the ground that the premises is with a tenant."
88. In M/s John Impex Pvt. Ltd. Vs. Dr. Surender Singh & Ors. 135 (2006) DLT 265), it has been held that, "The landlord is the best judge of his requirements and a tenant cannot dictate the terms on which the landlord should live."
89. In Anand Prakash vs. Ram Murti Devi decided on 03.05.2010, it has been held that "It is the discretion of the landlord to determine his needs when asking for vacation of the suit premises, subject to the need being bonafide".
90.Further, in Sudesh Kumar Soni & Anr. Vs. Prabha Khanna & RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 28/39 Anr 153 (2008) DLT 652, it has been held that, "24. 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 endeavour as to how else the landlord could have adjusted himself. Suitability has to be seen from the convenience of the landlord and his family members and on the basis of the circumstances including their profession, vacation, style of living, habits and background "If landlord wishes to live with comfort in a house of his own, law does not coerce or compel him to squeeze himself lightly into lesser premises protecting tenants occupancy. Landlord is the best judge of his residential requirement."
91.In the judgment titled as Ragavendra Kumar v. Firm Prem Machinary [AIR 2000 S.C.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. Similar observations have been made by the Hon'ble Delhi High Court in Shri Gurucharan Lal Kumar vs. Srimati Satya Wati [2013(2) RCR (Rent) 120]; Surinder Singh vs. Jasbir Singh [172 (2010) DLT 611].
92. In Sarla Ahuja Vs. United India Insurance Company Ltd. AIR 1999 SC 100, it was held that ".....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 RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 29/39 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 in 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 endeavour as to how else the landlord could have adjusted himself."
93. In S N Kapoor Vs Basant Lal Khatri, VII (2001) SLT 648 (2002) 1 SCC 329 it was held:
"that to contend that no material has been brought on record and no proof has been made by the tenant by any positive material that the requirement of the landlord is neither genuine nor bonafide or reasonable but a mere excuse to get ride of the tenant. Though the choice or proclaimed need cannot be whimsical or merely fanciful, yet a certain amount of discretion has to be allowed in favour of the landlady too and the courts should not impose their own wisdom forcibly upon the landlady to arrange her own affairs, according to their perception carried away by the interest or hardship of the tenant and the inconvenience that may result to him in passing an order of eviction. So far as a claim under Section 14(1) (e) is concerned, the very requirement has to be shown not only to be bonafide but the move of the landlord/ landlady to seek eviction of the tenant must be genuine."
94. It has been held by Hon'ble Supreme Court in Rishi Kumar Govil Vs. Maqsoodan, 2007 (1) RCR (Rent) 405 RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 30/39 "It is the choice of the landlord to choose the place for the business which is most suitable for him. He has complete freedom in the matter."
95. In Mohd. Ayub and anr Vs. Mukesh Chand (2012) 2 SCC 155 wherein it has been held that "........It is well settled the landlord's requirement need not be a dire necessity. The court cannot direct the landlord to do a particular business or imagine that he could profitably do a particular business rather than the business he proposes to start.........."
96. In the light of the above said judgments of Hon'ble Superior Courts, it can be safely said by this court that petitioner no.1 is the best person to adjudge his necessity to run the business which is as discussed above, proved by him on record. Respondent and for that matter, even the present court cannot dictate the petitioner, the manner in which he should run his business.
97. It is matter of common parlance that Mehrauli is near to Badarpur which is one of the stop where buses operate at the route from Dilshad Garden to Badarpur. As to how, residing at premises in question will give more convenience to the petitioner, should be left to the petitioner himself.
98. The fact that the buses are parked at Dilshad Garden would not have any major impact on the need of the petitioner because the premises are required for residence of petitioner no.1 to be close to his place of business and not to be close to place of parking of buses.
99. Hence, the first and second objections raised by respondent are untenable.
RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 31/39100. As far as objection of respondent that petitioner has given wrong details of his business and has suppressed the fact that he is partner in firm M/s Cool Air Conditioning at H69 A, Dilshad Garden, New Delhi, is concerned, in this regard, petitioner got examined his brother Sh. Sanjiv Goel as PW2, who filed on record his income tax and sales tax registration forms which are Ex.PW2/1 and Ex.PW2/2 (Colly).
101. The said witness deposed that he was running the said business of M/s Cool Air Conditioning from H69 A, Dilshad Garden, New Delhi as a sole proprietor and petitioner no.1 has no concern with the said business. In his crossexamination, he was confronted with photograph Ex.PW2/R1 to Ex.PW2/R5, he admitted that the photographs were of his shop but he denied the fact that blue colour signboard which is reflected in the said photographs, on which name of petitioner no.1 was mentioned, was affixed by him on the wall / pillar of the shop. He reiterated that he was the proprietor of the said shop and petitioner has nothing to do with his business.
102. On perusal of the documents Ex.PW2/1 and Ex.PW2/2(Colly), it is clear and evident that the above said business of M/s Cool Air Conditioning is run by PW2 as proprietor. Respondent could not bring even a single document to show that petitioner no.1 has any role in the said business.
103. In this respect, RW3 (respondent) on being crossexamined admitted that the property from where, the above said business is being run is owned by brother of petitioner no.1. On being confronted with visiting card of PW2 which is Ex.RW1/PX1, he showed his ignorance that he RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 32/39 was not aware that the name of Sh. Sanjiv Goel was mentioned as proprietor of M/s Cool Air Conditioning in the said card or not. He also showed his ignorance regarding the fact, who had clicked the photographs Ex.PW2/R1 to Ex.PW2/R5. He admitted that he was having no documentary proof or photograph, showing shop no. H69 A Dilshad Garden in open condition with board of Rajiv Goel affixed on the shop.
104. From the above said facts and admission on the part of RW1, it can be said that photographs Ex.PW2/R1 to Ex.PW2/R5 are not much reliable.
105. Respondent has not been able to file even a single document showing the role of petitioner no.1 in business of said electronic shop. Thus, respondent has not been able to show from record that petitioner no.1 has deposed false fact in respect to his transportation business and he is actually running business of electrical appliances with name M/s Cool Air Conditioning from abovesaid shop.
106. On the other hand, petitioner has been able to show from record and documents filed that he has no concern with the above said business of M/s Cool Air Conditioning, whose proprietor is PW2 Sanjiv Goel and not petitioner no.1.
107. Therefore, it can safely said that petitioner has been able to show on preponderance of probability that there is bonafide requirement on his part for business purpose to reside in the tenanted premises.
108. Now coming to the aspect of alternative accommodation. It is settled law that an alternative accommodation, to entail denial of the claim RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 33/39 of the landlord, must be reasonably suitable, obviously in comparison with the tenanted premises from where the landlord is seeking eviction.
109. In this respect, respondent has taken ground in WS that following accommodation are available for petitioner which are more suitable for him than the tenanted premises.
110. As per respondent, petitioners have following properties which are given below:
(i). H. No. 808, Sec 11, Vasundhra, Gaziabad, UP,
(ii). H. No. 658 Road No. V, Mehrauli, New Delhi, admeasuring 200 Sq Yards, which is still in the possession of petitioner.
(iii). Cross Road Sant Nagar, Burari, measuring 300 Sq Yards.
(iv). H. No. H 86, C, Dilshad Garden, Delhi.
(v). H. No. R51, LIG, Dilshad Garden, Delhi.
(vi). H. No. 759, Extn1, Shalimar Garden, Gaziabad, UP.
111. In respect to said properties, petitioners denied the said properties to be available for residence of petitioner no.1. Petitioners relied upon sale deeds dtd 25.10.2004 which are Ex.PW3/2 and Ex.PW3/3 pertaining to property 658, Mehrauli. The said property bearing no. 658 is near the property in question which is bearing no. 659. Vide the said sale deeds, area admeasuring 70 Sq Yards in respect to property bearing no. 658 was sold by petitioner no.1 and 2 alongwith Sh Sanjeev Goel and Sh. Sushil Kumar in favour of Smt. Meena Arora and 60 Sq Yards in favour RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 34/39 of Smt. Sumitra Chawla. The sale deeds were proved by PW3, who appeared from the Office of Sub Registrar, Mehrauli.
112. From the sale deeds it is clear and evident that 130 Sq Yards of the property were sold by family members of Lt Sh. Bishan Lal Goel i.e. petitioner no.1 & 2, PW2 and other brother namely Sushil Kumar in favour of Smt Meena Arora and Smt Sumitra Chawla long back in the year 2004 itself.
113. It was alleged by petitioner while being crossexamined as PW1 that rest of the area in respect to the said property that is around 44 Sq Yards is not habitable as it is a vacant plot, where there is no passage for entering into the same and the same is landlocked.
114. In this regard, respondent himself in his crossexamination as RW3 admitted that the said area a junglee area where vegetation is growing and there is no construction. He also admitted in his crossexamination regarding the fact of selling of 130 Sq Yards in favour of Smt Meena Arora and Smt Sumitra Chawla. He volunteered that even the other lady Smt Sumitra Chawla had also sold her property to Smt Meena Arora due to which Smt. Meena Arora is residing in the vicinity of her house. He also admitted the fact that one person namely Goverdhan but not Gangu Ram is residing in the vicinity of said portion of 44 Sq Yards and has opened his windows and doors on that part of the land.
115. In this regard, PW2 has also stated the same facts as alleged by PW1. PW2 admitted that the said portion of 44 Sq Yards is vacant and open plot which is in a joint possession. He also stated that passage to the portion of 44 Sq Yards is only via property 659 and is bounded on one RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 35/39 side by property no. 659, on two sides by the other portion of property no. 658 and on the fourth side, it is having property of Goverdhan @ Gangu but he is not aware regarding the property number of Goverdhan @ Gangu. Petitioner in order to support his version has also relied upon six photographs which are Mark A3 to show the current situation of the said property. Respondent has not been able to show that there is an independent access to vacant portion.
116. This proves the version of petitioners that they have no right in 130 sq yards of land and rest of the land measuring 44 sq yards is not habitable as there is no passage to reach the said area and the same is land locked by the other houses.
117. Hence, it is proved on record that the property no. 658, Road No. V, Mehrauli, New Delhi, admeasuring 200 Sq Yards is not available for residential purpose of petitioner no.1.
118. In respect to property no. 808, Sec 11, Vasundhra, Gaiziabad, UP, PW2 stated that it is in the name of his mother i.e petitioner no.2. PW2 also clarified that his brother namely Sushil Goel is residing in H. no. 51/H, Block R, Dilshad Garden.
119. Further, in respect to property situated at Sant Nagar, Burari, RW3 showed his ignorance that to whom it was sold in the year 2008 itself. He was even not aware that who is the owner of property bearing no. H 86, C, Dilshad Garden, Delhi. He also admitted that property bearing no. 759, Extn1, Salimar Garden, Gaziabad, UP was with brother of petitioner no.1. He was even not aware that which property fell into the share of petitioner no.1. He also stated that property no. 69A, Dilshad RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 36/39 Garden was owned by brother of petitioner no.1. As far as property no. R51, LIG, Dilshad Garden, Delhi is concerned, it is stated by RW3 in crossexamination that it was not LIG and the same is LIC. He stated that it might be possible that flat was alloted to Ms Meena Goel, who was working at LIC and after her retirement in the year 2008, she is vacated the same.
120. Thus, respondent failed to bring even a single document to show that apart from the property in question, petitioner no.1 is owning any other property which he can use for residential purpose near his place of business.
121. Apart from the above said properties, during the crossexamination of PW1, when he relied upon various documents in respect to bus bearing registration no. DL1PB1468, in the same address, of D/2, LIC Jeevan Sathiya, Staff Quarter, AQ Block was mentioned. In respect to the same, he clarified that the said staff quarter was allocated to his mother. He admitted that he has not mentioned the said address because her mother had already vacated the same after her retirement.
122. The above said portions of the testimony of petitioners' and respondent's witnesses reflect that no other alternative and suitable accommodation available with petitioner no.1 for the purpose of his residence.
123. Petitioners also proved through PW3 that respondent was having another property, the sale deed of which is Ex.PW3/1 dtd 15.09.2010, as a residential property in the name of wife and sons of respondent for their residence purpose. The said fact not denied by respondent RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 37/39 anywhere on record.
124. Therefore, it can safely said that petitioners have been able to show on preponderance of probability that there is bonafide requirement for residential purpose of petitioner no.1 in the tenanted premises and there is no other suitable alternative accommodation available with him for said purpose.
125. Another ground was taken by respondent that petitioner wants to let out the property on higher rent. In case the petitioners do not use the tenanted premises for the purpose as claimed by them, the respondent can always take recourse to the provisions of Section 19 of the DRC Act. In Badldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778 wherein it was held that:
"........ if there is any breach by the landlord, the tenant is given a right of restoration of possession............. 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 bona fide 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.."
126. Thus, all the essential ingredients for passing of an eviction order are fulfilled. Therefore, an eviction order is passed in favour of RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 38/39 petitioners and against the respondent in respect of property i.e. bearing no. 659, Ward no. V, Bangla Imli Wala, Mehrauli, Delhi as shown in Red colour in the site plan Ex.PW1/2. This order shall not become operative before the passage of six months from today.
127. File be consigned to the Record Room. Digitally signed by NITI PHUTELA NITI Date:
PHUTELA 2022.03.29
16:40:19
+0530
(Announced in the open court) (NITI PHUTELA)
on 16th March, 2022 RC/(SOUTH)/SAKET COURTS
NEW DELHI
RC ARC. 6197/16 RAJIV GOEL AND ANR Vs. RAMPAL SHARMA Page No. 39/39