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Delhi District Court

A.R.C. (North): Delhi vs Sh. Harjeet Singh on 28 August, 2009

                               1

      IN THE COURT OF SH. TARUN KR. SAHRAWAT
                 A.R.C. (North): Delhi. 


E No. 747/06
Date of institution: 23/11/1995
Date of decision   :  28/08/2009


SMT. SAFIA BEGUM
 W/o Mohd. Saeed

 
through her 
            L.Rs
                     

(i). SMT. JAI SHREE MITTAL
   W/o Sh. Jatin Mittal
   R/o 356­C, Mahavir Bazar,
   Teliwara, Delhi­110006.

2. SH.CHANDER SHEKHAR MITTAL
   (now deceased) through his 
   Legal heirs/representatives:­

(i).SMT. NISHA DEVI
   W/o Late Sh. Chander Shekhar Mittal
(ii). SH. JATIN MITTAL
   S/o Late Sh. Late Sh. Chander Shekhar Mittal

(iii). SMT. MEENA GUPTA
   W/o Sh. Ghanshyam Gupta
   D/o Late Sh. Chander Shekhar Mittal

(iv). SMT. NEENA GOYAL
   W/o Sh. Rajesh Goyal
   D/o Late Sh. Chander Shekhar Mittal

(v). SMT. Manisha Gupta
  W/o Sh.R.K. Gupta,
  D/o Late Sh.Chander Shekhar Mittal

                                         ...Petitioners 

                                                           Contd.....
                                     2

Versus

SH. HARJEET SINGH
S/o Sh. Sant Singh, 
Shop no. 2584, Ward no. 13,
Teliwara, Delhi­110006.                          ...Respondent


JUDGMENT:

Petitioners filed the present eviction petition U/s 14(1)(a), 6(A) & 26 of the Delhi Rent Control Act, 1958 (herein after referred to as DRC Act) against the respondent on 23/11/1995.

1. The brief facts of the case as narrated in the petition are that the petitioners are the joint owners of one shop bearing no. 2584, ward no. 13, Teliwara, Delhi­110006 as duly shown in red colour in the attached Site Plan. The respondent is a tenant in respect of said premises for commercial purposes on monthly rent of Rs. 13.20/­ p.m. excluding other charges after its enhancement on 26/08/1995. It is alleged that the respondent has neither paid nor tendered the entire arrears of rent w.e.f. 01/07/1999 till date inspite of repeated requests and demands of the petitioners and even after the service of the Contd.....

demand notices dated 09/07/1982 and 26/08/1995. The petitioners have claimed the legally recoverable rent due from the respondent only for last 03 years w.e.f. 01/09/1992 till date along with the enhanced rent @ 10 % p.m. from the date of notice for enhancement of rent i.e. 26/08/1995. Petitioners have also claimed the interest @ 15 % p.a. on the aforesaid arrears of rent. Finally, the petitioners prayed for passing an eviction order U/Sec. 14 (1)(a) of D.R.C. Act against the respondent in respect of the aforesaid premises.

2. In the written statement, the respondent submitted that he is in the occupation of the property as owner of the same in his own right because his father was the owner and in occupation of the property to the exclusion of anyone since partition of the country. The relationship of landlord and tenant has been disputed by the respondent. It is submitted that the alleged attorney of petitioner no. 1, Sh. Chander Shekhar has arrayed himself as petitioner no. 2, though he has got no authority to file and verify this petition and also no locus standi to file the Contd.....

present eviction petition. It is further stated that the present petition is barred under the provision of Order 2 Rule 2 C.P.C. as the petitioners have already filed another petition on the ground under Section 14 (1) (b) of the D.R.C. Act which is pending before another Ld. Rent Controller.

3. It is submitted that the order dated 27/07/1995 passed by the Competent Authority (Slum) with regard to the permission of filing the eviction petition against the tenant has been set aside by the Hon'ble High Court. Also submitted that since the respondent is in occupation of the premises as owner of the same, therefore, there is no question of any rent being enhanced or any rent being payable by the respondent. Other averments of the petition have been denied by the respondent. On the basis of the above submissions, respondent has prayed for dismissal of the present eviction petition.

4. Thereafter, the petitioners filed replication stating therein that the name of father of the respondent, Sh. Sant Contd.....

Singh has been duly shown in the records of the Custodian as a tenant and thus after his death, his son Sh. Harjeet Singh/the Respondent herein has become the tenant. It is submitted that neither Late Sh. Sant Singh nor Sh. Harjeet Singh ever acquired the ownership rights in respect of the premises in dispute. It is denied that father of the respondent was the owner of the property or that he was in occupation of the property in his own rights to the exclusion of anyone since partition of the country.

5. Petitioners re­affirmed the relationship of landlord and tenant between the parties. It is denied that Sh. Chander Shekhar , the petitioner no. 2 has got no authority to sign, file and verify this petition and submitted that in fact, earlier the property was jointly owned by Smt. Safia Begum and Smt. Suad Begum. Sh. Chander Shekhar was the attorney holder of both of them. Subsequently, Smt. Suad Begum sold her share to Sh. Chander Shekhar and that is how he became the owner of the same.

6. Petitioners stated that another petition filed by Contd.....

them against the respondent is on different cause of action and therefore this eviction petition is not barred under the provision of Order 2 Rule 2 C.P.C. It is admitted that the Hon'ble High Court had remanded back the case to the Competent Authority , Slum, but it was further decided in favour of the petitioners Vide order dated 05/08/1999 thereby granting the permission to the petitioners to institute the eviction petition against the respondent in respect of the premises in question. The said order has become final. The petitioners re­iterated and reasserted their other averments of the petition and controverted the submissions of the respondent. Then, the matter was fixed for evidence.

7. Petitioner no. 2 Sh. Chander Shekhar examined himself as AW­1 and Sh. Vijay Prakash, Custodian Clerk, Land and Building Department as AW­2. On the other hand, respondent Sh. Harjeet Singh examined himself as R.W­ 1, Sh. Pradeep Sharma, TGT (Science) Govt. School, Delhi as R.W­ 2, Sh. K. Goswami, UDC, Army Base, Work Shop, Delhi Cantt. as R.W­ 3, Sh. D. N. Khurana, Inspector, Contd.....

Food and Supply Department, Govt. of NCT, Delhi as R.W­ 4 and Sh. Sanjeev Sehgal, Instructor, ITI, Pusa as R.W­ 5. No other witness has been examined in this petition. It is relevant to mention here that during trial, the petitioner no. 2 Sh. Chander Shekhar expired on 14/12/2005 and vide order dated 31/03/2009, his proposed L.Rs no. 1 to 5 viz. (1). Ms. Nisha Devi, (2). Sh. Jatin Mittal, (3). Ms. Meena Gupta, (4) Ms. Neena Goyal and (5). Ms. Manisha Gupta were impleaded as L.Rs of the deceased petitioner no. 2 in the array of the parties. An application U/o 22 Rule 10 r/w Sec. 151 C.P.C. was also moved on behalf of Smt. Jai Shri Mittal on which the counsel for respondent raised no objection. At joint request, the said application was allowed. The applicant Ms. Jaishri Mittal has been substituted as petitioner no. 1 herein.

8. I have heard the arguments advanced by Learned counsel for both the parties, perused the evidence and other material placed on record.

9. Before I advert to the respective contentions of Contd.....

Ld. Counsel appearing for either parties, let us discuss the essential ingredients of Sec. 14(1)(a) D.R.C. Act as follows:­

(i)That there is relationship of landlord and tenant between the parties;

(ii) That there are arrears of legally recoverable rent;

(iii) That a valid legal demand notice was duly served upon the respondent; and

(iv) That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of receipt of legal demand notice.

1. That there is relationship of landlord and tenant between the parties:­

10. AW­1 Sh. Chander Shekhar deposed that he is the attorney of Ms. Safia Begum, the petitioner no. 1 herein. Earlier, Sheikh Ahmed Sayyed was owner of the suit property bearing no. 2584 Teliwara, Delhi. Thereafter, by virtue of the award passed by Hon'ble High Court, the suit property came to the share of his daughters viz. Ms. Suad Begum and Ms. Safia Begum. Ms. Suad Begum sold her portion (undivided) to AW­1 Sh. Chander Shekhar and accordingly, he and Safia Begum became the owner of the Contd.....

suit property. AW­1 brought the original Sale Deed executed by Ms. Suad begum and also the G.P.A. executed by both of them in his favour. Photo copies of Sale Deed and Power of Attorney have been proved as Ex. AW­1/1 and Ex. AW­1/2 (Original seen and returned). Certified copy of the said award passed by Hon'ble High Court has been proved as Ex. AW­1/3. AW­1 further deposed that father of the respondent Sh Sant Singh was a tenant in the suit property and after his death, his son Sh. Harjeet Singh became the tenant @ Rs. 12/­ pm. AW­1 proved the Site Plan as Ex. AW­1/9 which was got prepared by him through an Architect Ms. Sheetal Jain.

11. Here, Ld. counsel for respondent contended that the document relating to award of Hon'ble High Court vide Ex. AW­1/3 is not a registered document, while as per the provision of Registration Act, the award involving immovable property is required to be registered before making Rule of the court. In support of his contention, Ld. counsel sought reliance upon the following cases viz.

(i).Madhukar Goel v. M.S. Goel & Ors. AIR 1998, Delhi 257;

Contd.....

(ii). Maheshwar Dayal v. Neelkantheshwar Dayal & Ors. AIR 1982. Allahabad 117;

(iii). Bakhtawar Lal and Ors. v. Ram Kumar & Ors. AIR 1986 Allahabad 160.

12. On the other hand, Ld. counsel for petitioner contended that since the award in question declared only the pre­existing rights, therefore, it was not compulsorily registrable. He sought reliance upon the cases of as under:­

(i).Sardar Singh v. Smt. Krishna Devi & Ors. AIR 1995 Supreme Court 491;

(ii). Matapalli Chelamaya (dead) by his L.Rs & Anr. v. Matapalli Venkaratnam (dead) by his L.Rs & Anr. AIR 1972 Supreme Court 1921;

(iii). Roshan Singh & Ors. v. Zile Singh & Ors. AIR 1988 Supreme Court 881.

13. Having gone through the afore cited Law Authorities, it is discernible that unregistered award perse is not inadmissible in evidence as per law. It was precisely held in a case of Sardar Singh v. Smt. Krishna Devi & Ors. (Supra) that­ Contd.....

"Award made by private arbitrator declaring that claimant and his brother had purchased suit property jointly and that brother of claimant was Benamidar and both had half share in the property­­ Held, award declared only pre­ existing rights and was not compulsorily registrable."

14. In the case in hand, the award dated 25/06/1979 vide Ex. AW­1/3 was passed in order to adjudge/settle the dispute arisen amongst the daughters of late Sheikh Ahmad Saeed in regard to the properties left by him. By virtue of the said award, the parties were bound by the family settlement or an oral partition made between the legatees in December 1978 as was admitted by all of them. On perusal of the said award, it is apparent that the said award did not create any right, title or interest in favour of the daughters of Late Sheikh Ahmad Saeed, the original owner, but it only declared the pre­existing factum therefore, in the light of above mentioned law Authorities, I observe that said award was not compulsorily registrable. It was specifically held in the case of Mattapalli Chelamayya (dead) by his L.Rs & Anr. v. Mattapalli Venkaratnam (dead) by his L.Rs & Anr. (Supra) that­ Contd.....

"An award referring to the partition of immovable properties is not compulsorily registrable on the ground that it embodies a partition."

Similarly, in the abovecited case of Sardar Singh v. Smt. Krishna Devi (Supra). It was held that­­ "If the award contents a mere declaration of a pre­ existing right, it is not creating a right, title and interest in praesenti, in which event it is not a compulsorily registrable instrument."

Also in a case of Roshan Singh & Ors. v. Zile Singh & Ors. (Supra) that­­ "Family arrangements and partition­­ Distinction­ partition of ancestral properties­­ Subsequent memorandum of partition embodying factum of partition­ Held, memorandum was only family arrangement and its registration was not necessary."

15. In the wake of above, it is observed that objection of the respondent with regard to the registration of the award dated 25/06/1979 vide Ex. AW­1/3 is not maintainable in the eyes of law, hence, rejected. Further, Contd.....

Ld. Counsel for respondent took a plea that the petitioner has proved only the copy of Sale Deed and he has neither proved the original Sale Deed nor its certified copy. I do not find force in the contention of ld. Counsel for respondent as original Sale Deed has been seen and returned at the time of deposition of AW­1 Sh. Chander Shekhar. Moreover the respondent has not refuted the said registered Sale Deed anywhere in his pleadings and in the absence of any other document on record pertaining to the ownership of the suit property, this plea is not tenable, hence rejected. Here, I am puissant with a recent case law of Aktiebolaget Volvo & Ors. v. R. Venkatachalam & Anr. 160 (2009) DLT. 100 wherein our own Hon'ble High Court has held that­ "22. However, most importantly, Section 62 is as under:­ "62. Primary Evidence­ Primary evidence means the document itself produced for the inception of the court." Thus even at the stage of proof, the requirement is only for production of the original for inspection of the Court and not of filing of the original in the Court. It cannot be argued that production for inspection of the Court has to be necessarily by placing it on the file of the Court. it can also be by producing it as Contd.....

and when directed by the Court for inspection thereof.

23. When at the stage of proof of documents, the requirement under Section 62 of the Evidence Act is only of production of original for inspection of the Court, Order 13 Rule 1 of the C.P.C. requiring production of original has to be necessarily meant as production of original for inspection of the Court and not as filing of the original. Significantly, Order 13 Rule 1 also uses both expressions "produce" in connection with original and "filed" in connection with the copies. The different expression used, together with a definition/meaning of produce cited by Counsel for plaintiffs also lend me to hold the original documents are only intended to be produced i.e. to be given inspection of while the copies are to be filed.

24. I, therefore, find that the scheme of the aforesaid legislative provisions also permits production of originals for inspection only and filing of copies only."

16. Further, Learned counsel for respondent made another submission that the respondent is the owner of the suit premises by way of adverse possession and he is not a tenant in the said premises. The respondent placed some documents on record to establish his occupation and possession over the property since 1947 and thereby contended that he is the owner of the same in his own right exclusion to the right of anyone since 1947. I do not find Contd.....

strength in this contention as firstly, the respondent has neither pleaded nor deposed anywhere before the court that he is the owner of suit premises by way of adverse possession. Secondly, he has not shown any judgment/decree of a Civil Court on declaration awarded in his favour with regard to the ownership of the suit property. Neither he has filed any suit for declaration claiming therein the ownership of the suit property by way of adverse possession. He simply stated that he is the owner and in occupation of the suit property in his own right to the exclusion of anyone since partition. However, as per settled law, mere possession over the property for a longer period itself, does not confer upon the possessor, the title of the property. The party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario' that is peaceful, open and continuous. The possession must be adequate in continuity, in publication and in extent to show that there possession is adverse to the true owner and the burden of proof lies on the party claiming adverse possession. Respondent has also not disclosed the origin of title over the property. In a case of S. Contd.....

M. Kareem v. Bibi Sakinal AIR 1964 SC 1254; it was held that­ "The plaintiff, who filed a suit, should be very clear about the origin of title over the property. He must specifically plead it."

Similarly in a case of P. Perla Sami v. P. Peria Thambi (1995) 6 SCC 523; The Hon'ble Supreme Court ruled that­ "Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property."

17. In the present case the respondent has not stated anything about the original owner of the property. Even otherwise R.W­1 during his cross examination stated that­ "It is correct that the documents filed by me in the court duly exhibited, my name or my father's name is not mentioned as owner of suit property. I do not know whether my father Sh. Sant Singh was tenant of the custodian." He further stated that­ "he had no notice or information hence, he or his father never paid house tax."

Contd.....

18. In view of above, I observe that though the respondent is in occupation of the suit premises over the decades, but his claim over the suit property as owner either by way of any title or by way of adverse possession is not worthy of serious consideration, hence, rejected.

19. Further, Ld. counsel for respondent contended that the petitioner has neither proved Rent Deed nor any rent receipt to establish the relationship of landlord and tenant between the parties. I find that though AW­1 has not proved the Rent Deed or any rent receipt, but he has deposed before the court that there was a relationship of landlord and tenant between the parties. On the other hand, the respondent has failed to establish his claim of ownership over the suit property as already discussed above. Besides, he has not explained that in what capacity, he is in occupation of the suit premises over the decades. In such circumstances, adverse inference is drawn against the respondent. Thus, in the wake of above, it is held that relationship of landlord and tenant has been established Contd.....

between the petitioner and the respondent.

(ii), (iii) & (iv): That the respondent has neither paid nor tendered the entire arrears of legally recoverable rent within two months of date of service of legal demand notice.

20. AW­1 Sh. Chander Shekhar deposed that the respondent has not paid the rent since 1979, therefore, he sent a demand notice earlier through Sh. K.L. Sharma, Advocate and again through Sh. N.K. Jain, Advocate to the respondent. Notice dated 26/03/1995 was served through registered AD to the respondent. Carbon copy of the said notice has been proved as Ex. AW­1/5. Its UPC and registered AD card duly served, have been proved as Ex. AW­1/6, Ex. AW­1/7 and AW­1/8 respectively. He further deposed that the respondent neither replied the notice nor paid arrears of rent after receipt of notice. During his cross examination, Ld. counsel for respondent has not put single question or suggestion on this point which could counter/ contradict the testimony of AW­1 in this regard. Since,his testimony on this point has gone unrebutted, therefore, it is Contd.....

believed to be true as per law. Apart from this, it is an admitted fact that the respondent has not made the payment of rent @ Rs. 12/­ pm. or any enhanced rent as he was occupying the suit premises as owner of the same. Thus, it stands proved that the respondent has neither paid nor tendered the arrears of legally recoverable rent within two months from the date of service of valid demand notice.

21. Further, Ld. counsel for respondent raised an objection that as per Order 2 Rule 2 C.P.C. this eviction petition is not maintainable as the ground of Sec. 14(1)(a) D.R.C. Act was available with the petitioner even at the time of filing another eviction petition U/s 14(1)(b) of D.R.C. Act, but he omitted to take this ground in the said eviction petition. I do not find cogency in the arguments of Ld. counsel for respondent as I feel that it is the prerogative of the petitioner to file the eviction petition under any of the grounds mentioned in Sec. 14(1) of D.R.C. Act at any point of time and no law prohibits him to file the eviction petition under any of the provisions of D.R.C. Act Contd.....

at the subsequent stage. Even otherwise, what is barred U/o 2 Rule 2 C.P.C. is the relinquished part of the claim of the same cause of action. Apparently, the ground U/Sec. 14(1)(a) of D.R.C. Act is based on separate cause of action and thus, the provision of Order 2 Rule 2 C.P.C. is not attracted in this case. It was held in a case of Kewal Singh v. Smt. Lajwanti, 1980(1) AIR CJ 167; that­ "A perusal of O. 2 R. 2 would clearly reveal that this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff basis his suit on separate and distinct,causes of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have relinquished.

Sec. 14(1)(e), 14(1)(f) and 14­A are based on three distinct causes of action and if any of these is given up, O. 2 R. 2 C.P.C. is inapplicable."

Thus, it is discernible that present eviction petition U/Sec. 14(1)(a) of D.R.C. Act is not barred by the provision of Order 2 Rule 2 C.P.C. Accordingly, this plea Contd.....

of the respondent is not tenable and rejected.

22. Further, Learned counsel for respondent raised another contention that the petition should have been filed against all the legal heirs of the deceased respondent, but the petitioner did not do so. Here also, I find no cogency in the contention of Learned counsel for respondent as it is a settled law where the tenancy is a joint tenancy, a notice to one of joint tenants is sufficient to terminate the tenancy and the suit filed against one of the joint tenants was also good for the same reason. In a very recent case of Sh. Rajender Kumar Sharma & Ors. v. Smt. Leela Wati & Ors. 155 (2008) DLT 383; our own hon'ble High Court has held that­ "14. It is also settled law that when original tenant dies, the legal heirs inherit the tenancy as joint tenants and occupation of one of the tenant is occupation of all the joint tenants. it is also necessary for landlord to implead all legal heirs of the deceased tenant, whether they are living in the property or not.It is sufficient for the landlord to implead only those persons who are living in the property, as party. There may be a case where landlord is not aware of all the legal heirs of deceased tenant and impleading only those L.Rs who are in occupation of the property is sufficient for the purpose of filing Eviction Petition. An eviction petition against one of the joint Contd.....

tenants is an Eviction Petition against all the joint tenants and all joint tenants are bound by order of the Rent Controller as joint tenancy is one tenancy and is not a tenancy split into different legal heirs. Thus, the plea of the tenants on this count must fail."

Also in a case of Inderpal Khanna v. Com.

Bhupinder Singh Rekhi (Rtd.) 2008, VIII AD (Delhi) 328; it was held as under:­0 "It is a settled law that on death of the tenant, tenancy devolves upon legal heirs as a joint tenancy­ L.Rs. are joint tenants and not tenants in common - where out of many, only one or two L.Rs of the deceased tenant are in occupation of premises, and eviction petition by landlord against those who are in occupation of the premises is a valid petition - it is not necessary for the landlord to implead all the legal heirs of the deceased tenant or to implead even those who are not in occupation and possession of the premises."

23. In the light of above cited law authorities, I observe that the plea of the respondent with regard to non­ impleadment of all legal heirs of the original tenant Late Sh.Sant Singh in the petition, is not tenable hence, rejected.

Contd.....

24. In the wake of above, it is held that the petitioners have successfully established their case for eviction U/s 14 (1) (a) of the D.R.C. Act against the respondent in respect of one shop bearing no. 2584, Ward no. 13, Teliwara, Delhi­ 110006 as specifically shown in red color in the Site Plan vide Ex. AW­1/9. Further, I direct the respondent to pay or tender the legally recoverable rent @ Rs. 12/­ per month w.e.f. 01/12/1992 till date with enhanced rent @ 10% pm. from the date of notice i.e. 26/08/1995 along with interest thereon @ 15% p.a. to the petitioners within one month from the date of service of this order and continue to pay or deposit the future rent at the same rate by 15th of each succeeding month. Nazir is directed to maintain a separate file to consider the entitlement of the respondent for the benefit U/s 14(2) of the D.R.C. Act. Report of Nazir be called for 21/10/2009. This file be consigned to Record Room.

Announced in open court on 28th August, 2009 Tarun Kr. Sahrawat A.R.C.(North)/Delhi (1+2 separate copies are attached) Contd.....

E No. 747/06 SAFIA BEGUM VS. HARJIT SINGH.

                               


28/08/2009
Present:    Counsel for the parties.
            Vide my separate judgment of even date,     it is

held that the petitioners have successfully established their case for eviction U/s 14 (1) (a) of the D.R.C. Act against the respondent in respect of one shop bearing no. 2584, Ward no. 13, Teliwara, Delhi­110006 as specifically shown in red color in the Site Plan vide Ex. AW­1/9. Further, I direct the respondent to pay or tender the legally recoverable rent @ Rs. 12/­ per month w.e.f. 01/12/1992 till date with enhanced rent @ 10% pm. from the date of notice i.e. 26/08/1995 along with interest thereon @ 15% p.a. to the petitioners within one month from the date of service of this order and continue to pay or deposit the future rent at the same rate by 15th of each succeeding month. Nazir is directed to maintain a separate file to consider the entitlement of the respondent for the benefit U/s 14(2) of the D.R.C. Act. Report of Nazir be called for 21/10/2009. This file be consigned to Record Room.

Tarun Kr. Sahrawat A.R.C.(North)/Delhi Contd.....