Delhi District Court
Smt. Madhu Jain vs Munni Lal Moti Lal on 3 May, 2019
In the Court of CCJ cum ARC, (Central District)
Tis Hazari Courts, Delhi.
Presided by : Ms. Susheel Bala Dagar
Case No. E186/17
CIS No. 193/17
In the matter of :
1. Smt. Madhu Jain
W/o Late Sh. Subhash Chand Jain
2. Sh. Vivek Jain
S/o Late Sh. Subhash Chand Jain
Both R/o BP68, Shalimar Bagh (West)
Delhi. ...........Petitioner
Versus
Munni Lal Moti Lal
Through its Prop. Nitin Jain
1073, Ground Floor, Gali Langre Wali,
Maliwara, Nai Sarak,
Delhi110006. .............Respondent
Date of institution : 20.03.2017
Date of reserved for judgment : 13.03.2019
Date of judgment : 03.05.2019
Decision : Petition Allowed
JUDGMENT :
1. An eviction petition has been filed by the petitioners Smt. Madhu Jain and Sh. Vivek Jain against the respondent Munni Lal Moti Lal for vacation of the tenanted premises, i.e., one shop at the ground floor, forming part of property bearing no. 1073, Gali Langre Wali, Maliwara, Nai Sarak, Delhi, as shown in colour red in the site plan annexed alongwith the petition on the ground of bonafide requirement under Section 14 (1) (e) of the Delhi Rent Control Act (hereinafter referred to as CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 1 of 14 'the DRC Act').
2. The case of the petitioners is that late Sh. Subhash Chand Jain, husband of petitioner no. 1 and father of petitioner no. 2 was the joint owner/landlord with respect of property bearing no. 1073, Gali Langre Wali, Maliwara, Nai Sarak, Delhi. Late Sh. Subhash Chand Jain expired on 09.12.1992 leaving behind the petitioners, Vikas Jain and Vishakha Jain, as his legal heirs. After the demise of late Sh. Subhash Chand jain, his legal heirs and coowners partitioned the said property by virtue of a registered partition deed dated 22.06.2015. After the said partition, the petitioners became the joint owners of the following portions : i. Ground floor comprising shop bearing pvt. Nos. 2, 3, 4, 9 to 13 with common passage, etc. ii. Portion of mezzanine floor (between ground and first floor) comprising one shop.
iii. Portion of first floor comprising one hall shop, toilet, bathroom and passage.
iv. Portion of second floor comprising two rooms, open portion, kitchen, two bathrooms, WC etc..
v. Portion on mezzanine floor (between first and second floor) comprising one room, passage and two stores, etc. vi. Open roof on third floor upto sky heights with common right to use entrance, passage and stairs, etc. having its land area 53.63 sq. mtrs. (plinth area 214.52 sq. mtrs.) approx..
3. Thereafter, the petitioners, Vikas Jain and Vishakha Jain CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 2 of 14 partitioned the abovesaid portions by way of a registered partition deed dated 29.09.2016, vide which the petitioners became the joint owners of shops bearing no. 10, 11, 12 & 13 with common entrance, passage, stairs, etc., and remaining portions on the other floors.
4. Sh. Satya Pal Jain, father of the respondent, was inducted as the tenant with respect to the tenanted premises. After the death of Sh. Satya Pal Jain, his son Sh. Nitin Jain became the proprietor of M/s. Munni Lal Moti Lal and inherited the tenancy rights. Petitioner no. 2 is working with his younger brother Sh. Vikas Jain in shop no. 9 in the same building. Petitioner no. 2 wants to start his own independent business but due to paucity of accommodation, he is unable to do so. Thus, the tenanted premises is bonafidely required by petitioner no. 2 to start his own independent business. The petitioners do not own any other property in Delhi, from where petitioner no. 2 can start his own independent business.
On the above stated grounds, prayer is made for eviction of the respondent from the tenanted premises.
5. Summons were served upon the respondent, who appeared and filed leave to defend application, which was allowed vide order dated 03.06.2017. Thereafter, the respondent filed written statement stating that the petitioners are neither the owners nor the landlords of the premises which is in possession of Nitin Jain at present and previously was in possession of his father late Satyapal Jain. The property in possession of Nitin Jain is being referred as property No. 12, part of CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 3 of 14 property No. 1073, Gali Langde Wali, Maliwara, Nai Sarak, Delhi. There is no relationship of landlord and tenant between the petitioners and Nitin Jain. The petitioners have not filed any document to show any relationship of landlord and tenant and of the ownership of the petitioners. It is submitted that the electricity connection is in the name of Nitin Jain. Further, it is submitted by the respondent that the site plan filed by the petitioners is not the correct site plan. It is denied by the respondent that the shop was let out by the petitioners or Subhash Chand Jain to Sh. Satyapal Jain. It is submitted that Sh. Satyapal Jain was in possession of the property as owner at lease since 1970. It is submitted that the petitioners have many other properties in the same premises with them. It is denied that there was any partition, as stated by the petitioners. It is submitted that all the partition deeds placed by the petitioners are false, frivolous and procured documents and it has been procured, managed and prepared to make out a false and frivolous case. It is further submitted that the same is the situation with regard to all the alleged sale deed including the alleged sale deed to have been executed by some Anil Kumar or Naresh Chand Jain etc which sale deeds are false and frivolous documents.
6. It is submitted that the father of Nitin Jain died on 25.03.2016 and since March, 2016, premises was lying locked which was opened by Nitin Jain in April, 2017 only. It is submitted that he found that various papers, files which used to be kept by his father in the shop are missing which were including the paper regarding the title of the shop of his CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 4 of 14 father also which papers are not found there.
7. Replication to the written statement was filed by the petitioners wherein the petitioners have denied the contentions made by the respondent in his written statement, reaverring what was averred by them in the eviction petition. Further, it is submitted by the petitioners that the contents of the written statement are contrary to the application for seeking leave to defend. It is submitted that the respondent cannot blow hot and cold in same breath. It is submitted that Mr. Bhim Singh Dhingra is the tenant in respect of Shop No. 13, who is running his business under the name and style of M/s Deeksha Enterprises. Mr. Bhim Sain Dhingra is also a tenant in respect of Shop no. 10 & 11 and running his business under the name and style of Ram Lal Bhim Sain. The petitioner no. 2 is working as Jewellery Consultant with his brother Vikas Jain in his firm M/s Anant Gems & Jewellery and a certificate issued by Sh. Vikas Jain is annexed. It is submitted that the petitioner no. 2 has shown his salary in his income tax returns. It is specifically denied by the petitioners that the shop bearing Pvt. No. 12 part of property no. 1073 was not owned by the petitioner or that there is no relationship of landlord and tenant, as alleged. It is specifically denied that the site plan filed by the petitioners is not correct site plan, as alleged. It is submitted that the petitioners have clearly mentioned in the eviction petition that shop no. 9 is in possession of Sh. Vikas Jain, who is running his business from the said shop and the petitioner no. 2 is working with his brother Sh. Vikas Jain in the said shop.
CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 5 of 14
8. During evidence, the petitioners examined two witnesses. Petitioner no. 2, Sh. Vivek Jain, himself stepped into the witness box as PW1 and deposed on the lines of the eviction petition. Further, he relied upon the following documents : a) Site plan : Ex. PW1/1
b) Certificate issued by Sh. Vikas Jain : Ex. PW1/2
c) Copy of TIN No. issued by Sales Tax Department to : Ex. PW1/3 M/s Anant Gems & Jewellery
d) Copies of ITR of petitioner no. 2 : Ex. PW1/4
e) Electricity bills : Ex. PW1/5 (colly.)
f) Sale Deed dated 17.03.1960 alongwith its English : Ex. PW1/6 translation
g) Copy of partition deed dated 31.03.1975 : Ex. PW1/7
h) Copy of sale deed dated 20.06.1986 : Ex. PW1/8
i) Copy of Sale deed dated 20.06.1986 : Ex. PW1/9
j) Copy of partition deed dated 22.06.2015 : Ex. PW1/10
k) Copy of partition deed dated 29.09.2016 : Ex. PW1/11
l) Copy of relinquishment deed dated 15.05.2015 : Ex. PW1/12
9. PW2, Sh. Anuj Kumar Gupta, UDC from The Vaish Cooperative New Bank Ltd. entered into the witness box to prove the documents already exhibited as Ex. PW1/7 to Ex. PW1/12. Further, he relied upon the Authority Letter issued by The Vaish Cooperative New Bank Ltd. to depose before the Court as Ex. PW2/1.
10. In his turn, Sh. Nitin Jain stepped into the witness box as RW1 and deposed on the lines of written statement filed by him. Further, he relied upon the following documents :
a) Certified copy of the eviction petition of the case of : Ex. RW1/1 Raj Kumar Modi CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 6 of 14
b) Certified copy of eviction petition filed against Arnav Bothra : Ex. RW1/2
c) Certified copy of statement of Raj Kumar Modi, the certified : Ex. RW1/3 (colly.) copy of statement of petitioner no. 2, Vivek Jain and certified copy of order, all dated 28.04.2017
d) Certified copy of statement of petitioner no. 2, Vivek Jain, : Ex. RW1/4(colly.) joint statement of Arnav Bothra and Arush Bothra and the copy of order, all dated 28.04.2017
11. I have heard the contentions of both the parties and have gone through the judicial record.
Essential ingredients of Section 14(1)(e) of DRC Act, 1958. i. Petitioners are the owners/landlords in respect of the tenanted premises;
ii. They require the premises bonafide for themselves or for family members dependent upon them;
iii. They have no other reasonably suitable accommodation.
12. In the present case, the respondent has disputed the ownership of the petitioners over the premises in question as well as existence of landlordtenant relationship between the parties. It is submitted by the respondent that the petitioners are not the owner of the shop in possession of the respondent nor there was any landlordtenant relationship of petitioners with the respondent. It is submitted that there was no firm by the name of Munni Lal Moti Lal. Further, respondent submits that it was told to him by his father Sh. Satya Pal Jain that he was in possession of the shop for the last about 50 years and that he has purchased the said shop in the year 1970 or so. Further, it is submitted by the respondent that his father Satya Pal Jain also used to tell him that he became the owner of the shop by way of adverse possession and that no rent was CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 7 of 14 being paid by Sh. Satya Pal Jain either to Madhu Jain or Vivek Jain or to Subhash Chand Jain.
13. On the other hand, as per the case of the petitioners, late Sh. Subhash Chand Jain, husband of petitioner no. 1 and father of petitioner no. 2 was the joint owner/landlord with respect to property bearing no. 1073, Gali Langre Wali, Maliwara, Nai Sarak, Delhi. They have placed on record the entire chain of documents Ex. PW1/6 to Ex. PW1/12, which are registered documents in order to show how they have acquired the ownership of the suit property and how the property has been transferred since the year 1960 till the year 2016 by way of registered documents whereby the petitioners became the owners of portion on ground floor comprising shops bearing pvt. Nos. 10, 11, 12 & 13 with common passage and stairs etc., portion of first floor comprising one hall shop, toilet, bathroom and passage, portion on mezzanine floor (between first and second floor) comprising one room, passage and two stores, etc., portion of second floor comprising one room, open portion, WC and bathroom on second floor and open roof on third floor upto sky heights with common right to use entrance, passage and stairs, etc. having its land area 34.99 sq. mtrs. (plinth area 139.97 sq. mtrs.) approx. Once registered documents including, sale deeds, registered partition deeds and registered relinquishment deed are on record, the respondent cannot be allowed to challenge the authenticity of the said documents. Moreover, the respondent has baldly stated that his father was in possession of the shop for the last about 50 years and that he has purchased the said shop in CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 8 of 14 the year 1970 or so. Further, he took a contradictory stand submitting that his father Satya Pal Jain also used to tell him that he became the owner of the shop by way of adverse possession and that no rent was being paid by Sh. Satya Pal Jain either to Madhu Jain or Vivek Jain or to Subhash Chand Jain. Moreover, in the written statement, it is submitted by the respondent that his father Sh. Satyapal Jain was in possession of the property as owner at lease since 1970. Further, during cross examination, it is submitted by RW1 Sh. Nitin Jain, i.e. respondent that he has not placed on record any ownership papers regarding the suit property. Further, RW1 has stated that he cannot tell from whom his father had purchased the suit property. Thereafter, during cross examination, RW1 has himself admitted that the petitioners are the owners of shop no. 10, 11, 12 (tenanted premises in question) & 13 and all the said shops are under tenancy of different tenants. Thus, from the own submission of RW1, he is not able to explain in what capacity he is in possession of the premises in question, once he has admitted that the petitioners are the owners of shop no. 10 to 13. Thus, the version of the petitioners that the respondent is occupying the premises as a tenant after demise of his father is proved on the basis of preponderance of probability in their favour. Moreover, it is a well established law that the petitioner/landlord is not required to prove his absolute ownership over the premises in question. In Rajender Kumar Sharma & Ors. v. Leela Wati & others, 155 (2008) DLT 383, it was laid down that a landlord is not required to prove absolute ownership as required under Transfer of CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 9 of 14 Property Act and he is required to show only that he is more than a tenant. Hence, for the purpose of the DRC Act, the ownership of the petitioners over the premises in question as well as existence of landlord tenant relationship between the parties stands duly proved. Bonafide requirement & availability of alternative suitable accommodation :
14. It is submitted by the petitioner that the tenanted premises is bonafidely required by petitioner no. 2 Sh. Vivek Jain, who is presently working with his younger brother Sh. Vikas Jain in shop no. 9 in the same building and wants to start his own independent business. In order to show that the petitioner no. 2 is working with his brother Vikas Jain, the petitioner has placed on record the certificate issued by Vikas Jain as Ex. PW1/2, the copy of TIN No. issued by Sales Tax Department to M/s Anant Jems & Jewellery as Ex. PW1/3 and the copies of ITR of petitioner no. 2 as Ex. PW1/4.
15. Per contra, it is submitted by the respondent that the petitioners have many properties in the same premises with them. Further, during evidence, RW1 has deposed that two other eviction petitions were filed by the petitioners against the tenant Raj Kumar Modi and Arnav Bothra bearing No. E185/17 and E187/17 simultaneously with the present petition, which were amicably settled between the parties and the petitioners have obtained the keys of the tenanted premises from the respondents. RW1 has also relied upon the certified copies of the said eviction petitions as Ex. RW1/1 and Ex. RW1/2 respectively. RW1 has CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 10 of 14 also relied the certified copy of the statement recorded in the said settlement as well as orders passed by the Court in the said two other eviction petitions dated 28.04.2017 as Ex. RW1/3 & Ex. RW1/4.
16. It is not the case of the respondent that the petitioner no. 2, Sh. Vivek Jain is presently doing any independent business of his own. That being the case, the petitioner no. 2 being the coowner with respect to the tenanted premises cannot be denied of his right to start his own independent business in order to enhance his existing income as presently he is working with his younger brother Sh. Vikas Jain from shop no. 9 in the suit property. In Faruk Ilahi Tamboli v. B.S. Shankarrao Kokate (2016) 15 SCC 431; Dina Nath v. Subhash Chand Saini (2014) 11 SCC 20; Bhupinder Singh Bawa v. Asha Devi (2016) 10 SCC 209, it is held that the plea that the landlord has been carrying on business along with other family members from other premises and earning salary/profits therefrom is no ground to grant leave to defend to the tenant as the landlord is fully entitled to carry on separate business from the premises which were let out long back and the tenant has no locus to dispute the same. Moreover, in Sarla Ahuja v. United India Insurance Co. Ltd., AIR 1999 SC100", 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 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 CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 11 of 14 when the landlord shows a prima facie case it is open to the Rent Controller to draw a presumption that the requirement of the landlord is bona fide. It is often said by Courts that it is not for the tenant to dictate terms to the landlord as to how else he can adjust himself without getting possession of the tenanted premises. While deciding the question of bona fides of the requirement of the landlord it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted himself...".
17. As far as alternative shops which are stated to be got vacated by the petitioner from the tenants Raj Kumar Modi and Arnav Bothra by way of compromise in E185/17 and E187/17 respectively, the same being situated in between the first and second floor and other being situated on second floor cannot be termed as alternative suitable accommodation as compared to the ground floor shop, i.e., the tenanted premises. It cannot be denied that business being run on the ground floor is always much more profitable as the footfall of the customers on the ground floor is much more as compared any other floor. Reliance may be placed upon the law laid down in Rajesh Jain v. Quazi Sammin Ahmad 2015 (2) RLR 438 wherein it has been held that since eviction was sought for commercial purposes, it was rightly held that ground floor of the property would be more suitable. Similar view has been taken in Surinder Singh v. Jasbir Singh 172 (2010) DLT 611. Even otherwise, the petitioner, being the landlord is the best judge of his requirement and the tenant cannot dictate terms upon him as has been held in Ragavendra Kumar v.
CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 12 of 14 Firm Prem Machinary, AIR 2000 SC 534, the Hon'ble Supreme Court held that it is settled position of law that the landlord is best judge of his requirement for residential or business purpose and he has got complete freedom in the matter. Reference may also be made to Prativa Devi (Smt) v. T.V. Krishnan (1996) 5 SCC 353.
18. Another contention of the respondent is that Bhim Sen Dhingra is not the tenant of the petitioners in any of the premises and his name is falsely mentioned. Even the shops no. 2, 3, 4, 9, 10, 11 & 13 are in possession of the petitioner which could be used by them. However, during crossexamination RW1 has admitted that some tenants are on ground floor of the property but he does not know their names and he cannot tell how many tenants are there. He has also admitted that shops no. 10, 11, & 13 are under tenancy but he does not know the names of the said tenants. Thus, from the own version of the respondent, none of the shops, of which the petitioners are owners, is lying vacant for their bonafide requirement. On the other hand, PW1 has stated that Sh. Bhim Sain is a tenant for more than 32 to 35 years of shop no. 10, 11, & 13 on the ground floor, one hall on the first floor with latrinebathroom and one store on the mezzanine floor situated between first and second floor. Further, the petitioners have categorically stated and have produced the documents to show that the other shops bearing no. 2, 3, 4 & 9 are owned by the brother of the petitioner, namely, Vikas Jain. Thus, the respondent has failed to prove the availability of any other alternate shop/accommodation with the petitioners. Hence, the bonafide CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 13 of 14 requirement of the petitioner qua the tenanted premises as well as non availability of alternative suitable accommodation with the petitioner stands duly proved.
19. Thus, the petitioners have successfully proved all the essential ingredients of Section 14(1) (e) of the DRC Act. Accordingly, the eviction petition filed by the petitioners against the respondent under Section 14(1) (e) of the DRC Act is allowed. Petitioners are held entitled for recovery of the tenanted premises i.e. one shop at the ground floor, forming part of property bearing no. 1073, Gali Langre Wali, Maliwara, Nai Sarak, Delhi, as shown in red colour in the site plan annexed alongwith the petition. However, the petitioners would not be entitled to initiate execution proceedings for recovery of possession of the tenanted premises before expiration of six months from today in view of provisions given in Section 14(7) of the Act. Keeping in view the facts & circumstances of the case, no order as to costs.
File be consigned to record room.
Digitally signed by SUSHEEL SUSHEEL BALA DAGAR
BALA DAGAR Date: 2019.05.04
17:48:38 +0530
Announced in open Court Susheel Bala Dagar
on 3rd Day of May 2019 CCJ cum ARC (Central)
(This judgment contains 14 pages.) Tis Hazari Courts, Delhi
CIS No. 193/17 Madhu Jain v. Munni Lal Moti Lal Page no. 14 of 14