Delhi District Court
Subhash vs Sardar Harminder Singh on 21 December, 2023
In the Court of Ms. Deepti Devesh, Then Senior Civil Judge-cum-
Rent Controller, South East, Saket Courts, New Delhi
Presently Ld. Chief Metropolitan Magistrate
South East, Saket Courts, New Delhi
Presided By : Ms. Deepti Devesh, DJS
RC ARC. No: 62/2018
Sh. Subhash
S/o Late Sh. Lacchu Ram,
R/o House NO. 27, 2nd Floor,
Jangpura Road,
Boghal, New Delhi - 110014.
...Petitioner
Versus
1. Sh. Harminder Singh,
2. Sh. Jaswant Singh,
Both residents of
House No. 54, Masjid Lane,
Bhogal, New Delhi - 110014.
...Respondent
Judgment on petition for eviction of tenant Under Section 14 (1)
(e) read with section 25-B of the Delhi Rent Control Act, 1958
DATE OF INSTITUTION : 02.11.2018
DATE OF CONCLUSION OF ARGUMENTS : 05.12.2023
DATE OF DECISION :21.12.2023
JUDGMENT
Petitioner's case:
1. Brief facts of the petitioner's case are that petitioner is claiming to be the owner/landlord of entire first floor of house no. 27, Jungpura Road, Bhogal, New Delhi-14 (hereinafter referred to as "demised RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 1 of 15 premises"). The said house no. 27 was owned by grandfather of the petitioner, who executed a Will in favour of petitioner and his brother late Sh. Sultan, by virtue of which the petitioner and his brother became owner of the demised premises. It is further claimed that the petitioner and his brother rented out the demised premises in the year 1990 to the respondents, for which rent was being paid by the respondents. It is further stated that the respondents, on the pretext of obtaining water & electricity connections in their name in the demised premises, obtained signatures & thumb impression of the petitioner and his brother on blank papers, which were misused by the respondents. It is claimed that the respondents have not paid any rent to the petitioner after January 2011. It is claimed that one shop on ground floor of the said property is also co-owned by the petitioner and is under tenancy of a different tenant. It is claimed that the petitioner and his family members as well as late brother of the petitioner's family members are also residing on second floor of the said property, due to which, there is paucity of space for comfortable residence of the petitioner and his family members. Hence, it is stated that the petitioner has bonafide requirement for the demised premises for residential purposes. Hence, the petitioner has filed the present petition for eviction of respondents from the demised premises for bonafide requirement.
Respondent's case:
2. In the written statement filed on behalf of respondents, it is stated that the petition filed by the petitioner is misconceived.
Respondents have claimed that there is no landlord-tenant relationship RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 2 of 15 between the parties and the respondents are owners of the demised premises. It is claimed that the petitioner and his brother sold the demised premises to the respondents vide Agreement to Sell dated 24.03.1990 executed in favour of wife of respondent no. 1 and registered GPA dated 11.04.1990 executed in favour of the respondents. It is claimed that the petitioner and his brother had assured the respondents that they would execute Registered Sale Deed for the demised premises after getting the necessary mutation done in the records of DDA. It is claimed that the respondents have never paid any rent for the demised premises to the petitioner or his family members and therefore, the petitioner has not filed any rent receipts or rent agreement in the present case. The bonafide requirement claimed by the petitioner is also disputed and denied by the respondents. On this basis, dismissal of the present petition has been sought.
Replication:
3. The petitioner filed replication to the written statement of the respondents, in which the allegations made by the respondents were disputed and contents of the petition were reiterated.
Petitioner's Evidence:
4. In order to prove his case, petitioner examined himself as PW-1.
In his examination-in-chief vide affidavit Ex.PW1/A, he has mostly reiterated the averments made in the petition and relied upon the following documents:
a) Will dated 01.04.1969 Mark A.
RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 3 of 15
b) Mutation Record Ex.PW1/2 (OSR).
c) Site Plan Ex.PW1/3.
Thereafter, he was cross examined and discharged on 20.05.2022.
The petitioner also examined his late brother's son as PW- 4 who supported the case of the petitioner vide his affidavit Ex.PW4/A. Thereafter, he was cross examined & discharged on 14.03.2023. The petitioner also summoned witness from Sub-Registrar office as PW-2 who produced original Will in Urdu Language Ex.PW2/1 (OSR). Thereafter, petitioner also summoned witness from DDA Office who produced original mutation record in Urdu as Ex.PW3/1 (OSR) and Jamabandi register containing Khatauni Number 495 for Khasra no. 725 in Urdu Ex.PW3/2 (OSR). Thereafter, PE was closed.
Respondent's Evidence:
5. In order to prove their defence, respondent no. 1 examined himself as DW-1. In his examination-in chief vide affidavit Ex.DW1/A, he mostly reiterated the averments made in his written statement. He relied upon the following documents:
a) Agreement to Sell dated 24.03.1990 Ex.DW1/1 (OSR).
b) GPA dated 11.04.1990 Ex.DW1/2 (OSR). c) Aadhar Card Ex.DW1/3.
Thereafter, he was cross examined and discharged on 18.07.2023. Respondent no. 2 also examined himself as DW-2 and relied upon his affidavit Ex.DW2/A. Thereafter, he was also cross RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 4 of 15 examined & discharged on 18.07.2023. The respondents also summoned witness from Sub-Registrar Office as RW-3 who produced certified copy of GPA dated 11.04.1990 Ex.RW3/1.
Thereafter, respondent's evidence was closed and the matter was fixed for final arguments.
Appreciation of Evidence & Finding:-
6. Despite opportunity given on date fixed for final arguments, oral arguments were not addressed by the parties and therefore, liberty was granted to parties to address final arguments by way of written arguments. Written arguments have been filed by both the parties. The respondents have relied upon 1. Hon'ble High Court of Delhi in C. R. No. 470 of 2003 & C. M. 1010 of 2003 decided on 26.05.2003: "J. C. Mehra Vs. Kusum Gupta", 2. Hon'ble Supreme Court of India in its decision in Civil Appeal No. 2458 of 2014 arising out of SLP (c) No. 23069 of 2012 decided on 19.09.2014: "Maya Devi Vs. Lalta Prasad", 3. Hon'ble High Court of Delhi in RFA No. 648 of 2006 decided on 18.05.2012; "Hardip Kuar Vs. Kailash and Ors.", 4. Supreme Court of India in SLP (c) No. 13917 of 2009 decided on 11.10.2011 in "Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Ors., 5. Hon'ble Delhi High Court in RFA No. 264 of 1973 decided on 19.09.1970; "Harbas Singh Vs. Shanti Devi", 6. Supreme Court of India Civil Appeal No. 405 of 1964 decided on 09.03.1965; "S. Chattanathakarayalar Vs. The Central Bank of India and Ors.". Record has been carefully perused.RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 5 of 15
7. It is now settled position of law that in a case for eviction of tenant under Section 14 (1) (e) DRC Act, there are a few essential ingredients required to be established by the petitioner landlord. The said requirements have been clearly spelled out by the Hon'ble Delhi High Court in Dalip Kumar Bakshi vs. Vivek Khurana, 2014 SCC Online, DEL 6437 that :
"in a bonafide necessity eviction petition which is filed under Section 14(1)(e) of the DRC Act, three aspects are required to be seen by the Court. Firstly, there exists a relationship of landlord and tenant between the parties and landlord is the owner of the premises; Second is that the landlord needs the premises for the bonafide use for himself and /or his family members. Thirdly, the landlord must not have an alternative suitable accommodation".
Landlord is owner of the demised premises.
8. Ownership of the demised premises has been challenged by the respondents. Respondents have claimed that they became owners of the demised premises vide Agreement to Sell Ex.DW1/1 and GPA Ex.DW1/2 (both OSR). The petitioner has disputed the above said documents and has in fact claimed that Agreement to Sell Ex.DW1/1 (OSR) is a forged & fabricated document, not bearing the signatures of the petitioner. Petitioner has further claimed that signatures on GPA Ex.DW1/2 (OSR) are of the petitioner, but they were obtained fraudulently by the respondents on the pretext of obtaining electricity and water connection for the demised premises in the name of respondents. It has been categorically disputed by the petitioner that he has received any consideration from the respondents for selling the demised premises to the respondents.
RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 6 of 159. In this factual backdrop, it is pertinent to note that now the position of law is well settled regarding transfer of immovable property. An immovable property can be sold only by way of registered Sale Deed and not by way of documents like GPA or Agreement to Sell. Reliance is placed upon judgment of Hon'ble Supreme Court of India in Suraj Lamp and Industries Pvt. Ltd. Vs. State of Haryana and Ors. In the present case also, the respondents have not produced any registered Sale Deed in their favour for the demised premises. On the other hand, the petitioner has claimed ownership on the basis of Will dated 01.04.1969 Ex.PW2/1 (OSR). It is a matter of record that the said Will is in Urdu language and no translated copy has been filed on record, for ease of reference for this Court. However, the respondent no. 1 in his cross examination dated 18.07.2023, has admitted that he had seen the Will in the name of the petitioner and his brother, executed by their grandfather. Thus, the respondents have admitted existence of Will by grandfather of the petitioner in favour of petitioner and his brother. Therefore, the previous co-ownership of the petitioner over the demised premises is not disputed even by respondents. Hence, the ownership challenge of the respondents can succeed only if they are able to establish transfer of ownership as per applicable laws, in their favour from the petitioner and his brother. As already noted above, the respondents have not produced any registered sale deed and thus, have failed to establish any transfer of the said property in their favour.
RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 7 of 1510. Notwithstanding the above, the documents relied upon by the respondents to establish their ownership claim are not credit-worthy, for the reasons discussed hereinbelow. The testimonies of respondent no. 1 & respondent no. 2, with respect to Agreement to Sell Ex.DW1/1 (OSR) and GPA Ex.DW1/2 (OSR) are contradictory to each other. Respondent no. 2 has stated in his cross examination dated 18.07.2023 that no property documents were executed by the petitioner or his brother at any time and the property documents were executed only between him and grandfather of the petitioner. The said testimony of respondent no. 2 is absolutely contrary to the stand taken by respondents in their written statement as well as evidentiary affidavits Ex.DW1/A and Ex.DW2/A. Furthermore, the respondents have also failed to explain why agreement to sell Ex.DW1/1 (OSR) was executed in favour of wife of respondent no. 1 and brother of respondent no. 2, while GPA Ex.DW1/2 (OSR) was executed in favour of the respondents, despite the fact that both the above said documents pertained to property transaction for the same demised premises. Furthermore, it is not the case of the respondents that they filed any suit for specific performance against the petitioner or his brother for execution of sale deed, despite claiming that entire sale consideration was already paid. Why no action was taken by respondents since 1990 is not explained anywhere. Furthermore, both the respondents have deposed contrary to their alleged ownership documents. The agreement to sell Ex.DW1/1 (OSR) states the sale consideration to be Rs. 1,00,000/-, but both the respondents have deposed in their respective testimonies that they paid consideration amount of RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 8 of 15 Rs.5,00,000/- to the petitioner and his brother for the demised premises. The above is a glaring and material contradiction, which completes belies the claim of ownership made by the respondents.
11. The respondents have claimed that the petitioner has contradicted himself by deposing to the contrary than the claim made in his pleadings. The respondents may be correct in pointing out contradictions in the testimony of petitioner, but it is well settled that the burden f proving a fact in a civil dispute is upon the party pleading that fact. Hence, the contradictions, if any, in the case of petitioner, cannot absolve the respondents of their burden to establish their ownership claim over the demised premises. As already discussed above, the respondents have miserably failed to do so. As already noted above, the will Ex. PW2/1 (OSR) is sufficient to establish better ownership claim in favour of the petitioner, moreso, when the respondent no. 1 has admitted seeing the same in his testimony. It is well settled that in a petition under Section 14(1)(e) DRC Act, the ownership of demised premises is not to be examined as in a title suit. Landlord merely has to show a better title to the demised premises to seek eviction of the respondent. Reliance is placed upon Dr. Jain Clinic Pvt. Ltd. Vs. Sudesh Kumar Dass in RC Rev. No. 136/12, decided on 22.08.2013 (Delhi HC), Shanti Sharma Vs. Smt. Ved Prabha [AIR 1987 SC 2028], Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450, Sheela and ors Vs. Firm Prahlad Rai Prem Parkash, (2002) 3 SCC 375 and Sushil Kanta Chakarvarty Vs. Rajeshwar Kumar, 79 (1999) DLT 210.
RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 9 of 1512. The respondents have also alleged that the petitioner is admittedly not the sole owner of the demised premises and remaining owners have not consented to filing of the present petition. Such contention is no longer tenable as it is now well settled that an eviction petition under Section 14(1)(e) DRC Act is maintainable even by one of the co-owners of the demised premises and consent/authority of other co-owners is not necessary. Reliance is placed upon Kanta Goel vs. D.P. Pathak, 1979 (1) RCR (Rent) 485; (1977) 2 Supreme Court cases 814, Pal Singh vs. Sunder Singh 1989 (2) RCR (Rent) 331; (1989) 1 Supreme Court cases 444; Seshasyana Rao & Ors Vs. Manuri Venkatesa Rao & Ors AIR 1954 Madras 531, Sri Ram Pasricha V. Jagannath & Ors (1976) 4 SCC 184. In fact, in M/s Indian Umbrella Manufacturing Co. & Ors. vs. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Ors., AIR 2004 1321, the Hon'ble Supreme Court went a step ahead and opined that even if no prior no objection is obtained from the remaining co- owners, then also the petition is maintainable.
Landlord Tenant Relationship:
13. The respondents have disputed being tenants in the demised premises. As already noted above, the claim of ownership of the respondents is not tenable. Considering the same, it is incumbent upon the respondents to show in what capacity they came into possession of the demised premises. The petitioner has specifically pleaded that the respondents are tenants. However, no rent agreement or rent receipt RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 10 of 15 has been filed. The petitioner has given oral testimony that rent was always paid in cash of Rs.2,700/- per month and was paid till 2011. In his cross-examination, only suggestions have been put by the respondents, that they were neither tenants nor ever paid rent. The petitioner has been steadfast in his cross-examination regarding the status of the respondents as tenants in the demised premises. Furthermore, PW4, who is nephew of the petitioner has also categorically deposed that the respondents were inducted as tenants in the demised premises by the petitioner and his father. In fact, in his cross-examination dated 14.03.2023, he has deposed that he is an eye- witness to payment of rent. He has deposed, " The present petition pertains to the eviction of the tenants of the first floor. I saw my grandmother taking rent from the tenant and sometimes my father used to take monthly rent from the tenants. Then after, my father's death my grandmother used to take the rent from the tenants which the tenants used to come at our home to pay the rent also." Thus, the petitioner has also produced an eye-witness to the payment of rent which is certainly better evidence than the bald assertion of the respondents that they are not tenants.
14. Furthermore, it is admitted by both the parties that there is no separate electricity and water connection in the demised premises. Infact, during cross-examination of the petitioner, he produced one electricity bill in his name for the demised premises Ex.PW1/D1, which categorically states first floor of house No. 27. In cross- examination of respondent no. 1, he has deposed that the respondents RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 11 of 15 used to take electricity and water from the petitioner by paying them charges. If this statement of respondent no. 1 is to be believed, then even the respondent no. 1 has not produced any receipt for payment of electricity and water charges only to the petitioner for his use in the demised premises. DW1 has deposed, "Q. Is there any electricity or water connection in the property in dispute in your and your family members name? A. No. (Vol. We used to take electricity and water from petitioner and his family paying them charges)." In light of admission of respondent no. 1 in his cross- examination dated 18.07.2023 that he used to make payment of electricity and water charges to the petitioner and his family, the claim of the petitioner that rent was also paid without issuance of any separate rent receipt for the demised premises, also appears to be a credible claim. It appears that the parties were having monetary transactions without issuance of any written acknowledgment and, therefore, neither any rent receipts were issued nor any separate receipts for payment of electricity and water charges were issued.
15. In view of the above discussion, on the basis of preponderance of probabilities, it appears that there is landlord tenant relationship between the parties and the basis of such relationship was oral agreement only between the parties including payment of rent and other dues without issuance of any written document.
Bonafide Requirement and availability of alternative accommodation :
RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 12 of 1516. Although the respondents have claimed that there is no bonafide requirement of the petitioner for the demised premises, but no substantive material in this regard has been produced by the respondent. The petitioner has stated that he is residing on the second floor of house no. 27 with his family members as well as the family members of his late brother. He has stated that his family members comprise of himself, his wife and two daughters, while the petitioner's brother's family comprises of his widow, his married daughter and one son. He has further stated that he is in need of additional rooms for his residential accommodation as his daughters have grown up and require two separate rooms, one drawing room for the entire family, one pooja room and one guest room for visiting family members. The present residence of petitioner, his family and family of his deceased brother is not disputed by the respondents. No particular averments regarding paucity of space has been made by the respondents in the written statements. Furthermore, no substantial material has been produced by the respondents regarding existence of any suitable alternative accommodation available with the petitioner for residence of his family members. No particular address of any other property has been provided in the pleadings or evidence by the respondents to show that petitioner is owner of any other property, which can be used for his residential purposes. The averments with respect to lack of bonafide requirement and availability of vacant and suitable accommodation to the petitioner are merely assertions on part of the respondents without any corroborative material. It is now well settled that respondent RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 13 of 15 cannot resist his eviction only on allegations made in the pleadings, but only if some cogent material is also produced by the respondent to show that he has material to non suit the landlord. In this regard, reliance is placed upon the judgment of Baldev Singh Bajwa v. Monish Saini (2005) 12 SCC 778. Reliance is also placed upon the judgments of Hon'ble Delhi High Court in Ram Swaroop v. Viney Kumar Mahajan dated 24 th July, 2017 in RC Rev. No. 112/2016 and Lalta Prasad Gupta v. Sita Ram dated 2nd August, 2017 in RC Rev. No. 352/2017. When the tenant does not produce any document at all before the Court on the basis whereof there is any chance of the tenant proving what he has stated about availability of an alternative accommodation, the only inference is that the facts disclosed are not capable of being proved and/or not capable of dis-entitling the landlord from obtaining an order of eviction under Section 14 (1) (e) of the Rent Act.
17. Moreover, with respect to bonafide requirement, it is not open to the tenant to tell the landlord how much space ought to be used for his residence. It is for the landlord to decide in what manner he wants to use the properties owned by him. The tenant is not entitled to weigh the bonafide requirement of petitioner against his own need for the demised premises. It is upon the discretion of the petitioner to use all his properties in a manner as deemed fit by him. In view of the above, the respondents have failed to establish that the bonafide requirement stated in the present petition is not a genuine bonafide requirement.
18. It is pertinent to mention here that no doubt the respondents are in possession of the demised premises for a long period of time, and an RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 14 of 15 eviction order will cause inconvenience to the respondents. However, it has been categorically held in the Judgment of Hon'ble Supreme Court of India in Mohd. Ayub Vs. Mukesh Chand, 2012(2) SCC, 155 that any order of eviction is likely to cause hardship to the tenant who is being asked to move out of the premises, but depriving any person from occupying his own premises, is likely to result in more hardship. Thus, the respondents might be worthy of sympathy, but that does not raise any triable issue in his favour.
19. In view of the above discussion, the present petition for eviction of respondents from the demised premises under Section 14(1)(e) DRC Act, is hereby allowed. However, the respondents shall be entitled to statutory time period of six months from date of present order to hand over vacant and peaceful possession of the demised premises to the petitioner.
20. File be consigned to record room, after due compliance.
Typed directly on court computer and Announced in the Open Court DEEPTI Digitally signed by DEEPTI DEVESH DEVESH Date: 2023.12.21 15:44:29 +0530 (Deepti Devesh) Then Senior Civil Judge-cum-Rent Controller South East, Saket Courts, New Delhi Presently Ld. Chief Metropolitan Magistrate South East, Saket Courts, New Delhi 21.12.2023 RC ARC 62/2018 SUBHASH Vs. SARDAR HARMINDER SINGH Page 15 of 15