Sh. Savinder Singh Kohli vs Sh. Bal Kishan on 5 September, 2016

[Cites 46, Cited by 0]

Delhi District Court

Sh. Savinder Singh Kohli vs Sh. Bal Kishan on 5 September, 2016

   IN THE COURT OF SH. GAURAV RAO, SENIOR CIVIL JUDGE
    CUMRENT CONTROLLER, SOUTH EAST DISTRICT, SAKET 
              COURT COMPLEX, NEW DELHI


                                                          E. 17/14 (New No. 5102/16) 
                                                        CRN No. DLSE030005022014 

1. Sh. Savinder Singh Kohli
s/o Sh. Harbans Singh Kohli
R/o A94, 2nd Floor, Lajpat NagarI,
New Delhi110024.

2.  Sh. Narinder Singh Kohli
s/o Sh. Harbans Singh Kohli
R/o A94, 2nd Floor, Lajpat NagarI,
New Delhi110024.
                                                                         .....Petitioners
                        Versus

Sh. Bal Kishan
c/o Shilpa Beauty Corner,
Private Shop no. 8A, forming part of shop no.8,
Central Market, Lajpat NagarII,
New Delhi110024. 



                                                                       ...... Respondent 

                 Date of institution :                   15.09.2014


E 17/14 (New 5102/16)              Savinder Singh Kohli & anr Vs. Bal Kishan                1/74
                  Date of arguments :      05.09.2016
                 Date of order     :      05.09.2016
                 Decision          :      Petition allowed.
                  
                                   JUDGMENT

1. The present petition for eviction and recovery of possession of One shop bearing private no. 8A, forming part of Shop no. 8, Central Market, Lajpat NagarII, New Delhi, measuring around 6 x 3 ft. more specifically shown in red in the site plan filed along with the petition and hereinafter referred as tenanted premises, has been filed u/s 14 (1) (e) r/w section 25B of Delhi Rent Control Act 1958.

Petition

2. The version of the petitioners is that they are the owners of the entire shop bearing no. 8, Central Market, Lajpat NagarII, New Delhi (hereinafter referred as suit property) and the tenanted premises/shop is part of above property. It is their case that their father let out the tenanted premises to the respondent for commercial purposes around 30 years back and respondent is using the same for running business of laces, saaree fall etc. under the name and style of Shilpa Beauty Corner. E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 2/74 2.1 It is further their case that their grandfather namely Late Sh. Natha Singh purchased the shop no. 8 measuring about 278 sq. feet, as Marked A, B, C and D in the site plan, by virtue of registered lease and conveyance deed dated 14.09.1965. Sh. Natha Singh died on 14.08.1969 and upon his death his widow Smt. Parmeshwari Kaur and his children became owner of the said shop. All the legal heirs of Late Sh. Natha Singh except the father of petitioners Sh. Harbans Singh executed a registered relinquishment deed dated 10.06.1982 in favour of Sh. Harbans Singh, father of petitioners and thus he became the absolute owner of entire property. 2.2 It is further their case that MCD somewhere in 1985 allotted a covered area measuring 6 x 14 in front of shop bearing no. 8, Central Market, Lajpat NagarII, New Delhi, as shown and marked as C,D, E and F, to the father of petitioners on yearly tehbazari.

2.3 It is further their case that Sh. Natha Singh and his sons were running a Sweet Shop under the name and style of Kohli Sweets and subsequently father of petitioners started a shop of artificial jewellery from the portion of shop no. 8 and from the area allotted on tehbazari as shown in green and yellow in the site plan. Since the portion as shown in green and E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 3/74 yellow in site plan attached was not sufficient, the father of petitioners sometime in 199091 constructed the basement under the area shown in green and yellow in the site plan.

2.4 It is further their case that since both the petitioners were married, having grown up children and still unemployed with no source of income, father of petitioners out of love and affection and to settle his sons executed a gift deed in respect of entire shop bearing no. 8, Central Market, Lajpat NagarII, New Delhi24 measuring 278 sq. ft. by a registered gift deed dated 20.11.2006 in favour of both the sons i.e. petitioners and thus both the petitioners became the owner of entire shop No. 8, Central Market, Lajpat NagarII, New Delhi.

2.5 It is further their case that portion shown and Marked C,D, E and F continued to be on tehbazari with the father of petitioners. 2.6 It is further their case that after execution of Gift deed both the petitioners and their father continued business of artificial jewellery from the shop shown in green and yellow in the site plan.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 4/74 2.7 It is further their case that unfortunately due to temperamental differences there were constant disputes between the petitioners and both of them were not able to carry on their joint business. It is averred that inspite of execution of gift deed when both the petitioners were not able to work together and there were constant dispute, the father of petitioners started feeling insecure and depressed and left with no option both the petitioners and their father decided to let out the entire shop shown in green and yellow with basement and decided to share the rent with their father so that he does not feel insecure at the last leg of his life.

2.8 It is further their case that petitioners and their family decided to let out their shop to Sarawati Bangle India Pvt. Ltd for six years and also requested the tenant to pay part of the rent to the father of petitioners. It is averred that as advised and also desired by the tenant the petitioners executed three registered agreement to sell dated 04.03.2009 in respect of 20% undivided share each in shop bearing no. 8, Central market, Lajpat NagarII, New Delhi24 in favour of their father and respective wives. 2.9 It is further their case that on the same day i.e. 04.03.2009 petitioners, their father etc. executed a registered lease agreement for six E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 5/74 years with Saraswati Bangle India Pvt. Ltd. in respect of the portion of the shop as marked green and yellow in the site plan.

2.10 It is further their case that though the petitioners got some source of income from rent but still there was constant dispute in the family particularly because of the unemployment of the petitioners. Therefore it was decided in the family to request the tenant to vacate the shop even before the expiry of the lease period so that both the petitioners can start their own business and generate employment for themselves. 2.11 It is further their case that the tenant understanding the bonafide accordingly on the request of petitioners vacated the shop under their tenancy in January 2014.

2.12 It is further their case that petitioners and their respective wives also cancelled the agreement to sell dated 04.03.2009 and relinquished all their rights and claims arising out of the said agreement to sell and it was agreed between both the petitioners that they will start their individual business from the shop in their possession.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 6/74 2.13 It is further their case that parts of shop no. 8 i.e. Shop Marked 8A, 8B, 8C are in possession of three different tenants including the respondent and it is not possible to divide the shop owned by the petitioners into two parts unless above shops are vacated. It is their case that petitioners require the above shops bonafidely for their use and occupation as petitioners could not start their independent business from the shop and the basement marked green and yellow in the site plan.

2.14 It is further their case that since it was practically not possible for the petitioners to start two establishments independently from the shop shown in green and yellow in the site plan unless the suit shop and two other shops were vacated by the tenants therefore both the petitioners as a make shift arrangement agreed, that till tenanted shops are vacated and the entire shop can be used for two independent establishments, that petitioner no. 2 shall start his establishment independently from the premises shown in green and yellow in the site plan and accordingly petitioner no. 2 started carrying out business of snacks, bar/chaat pakori under the name and style of Kohli's Munchin. It is their case that petitioner no. 2 started a small fast food counter but still is not having any vacant place available to make sitting arrangement for his customers.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 7/74 2.15 It is further their case that portion shown in green and yellow in the entire shop along with basement underneath the same are the only premises with the petitioners.

2.16 It is further their case that the tenanted premises under the tenancy of the respondent is required bonafidely by the petitioners for their use for starting their own independent establishment and to settle themselves and they have no other alternate suitable accommodation available with them since the tenanted premises will also not be sufficient to meet the requirement of the petitioners they have filed eviction petition against the other tenants.

2.17 It is further their case that their father is the owner of one residential property i.e. A94, Lajpat NagarI, consisting of baseless, ground, first, second and third floor. It is averred that basement of the same is used for storage of household articles, on the ground floor father of petitioners is residing, on the first floor petitioner no. 2 is residing along with his family and on second floor petitioner no. 1 is residing with his family and third floor of the property is with the tenant which has been let out for residential purpose.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 8/74 2.18 It is further their case that petitioners and their respective wives are the owners of residential property admeasuing 100 sq. yards bearing no. B54, Lajpat NagarII, New Delhi and same is in occupation of tenants. 2.19 Hence the present petition has been filed on the ground of bonafide requirement.

3. The respondent was duly served with the petition and he consequently filed the application seeking leave to defend along with an affidavit on 09.10.2014. Vide proceedings dated 21.10.2014, in terms of the submissions of Ld. Counsel for the petitioner and statement of petitioner no. 1, the application seeking leave to defend was allowed by the Ld. Predecessor of this court.

4. Thereafter the respondent filed the detailed written statement denying the contents of the petition.

Amended Written Statement (vide orders dated 07.10.2015)

5. In the Written Statement it was pleaded that the petition for eviction is liable to be dismissed for nonjoinder of necessary and proper E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 9/74 party. It was pleaded that respondent was inducted as a tenant in the tenanted premises in the year 1978 by Sh. Harbans Singh Kohli i.e. father of petitioners and hence Harbans Singh Kohli ought to have been made the party to the present petition and the petition is liable to be dismissed on account of his non joinder.

5.1 It was further pleaded that petitioners are not the landlord nor there is any landlord tenant relationship between the parties and petition is liable to be dismissed being not maintainable under Delhi Rent control Act, 1958.

5.2 It was further pleaded that present petition merits dismissal at the outset as the present petition fails to disclose a bonafide need of the petitioners as the need for partition of the property of which the tenanted premises forms a part cannot be taken a ground in the petition filed under Section 14 (1) (e) of the Act.

5.3 It was pleaded that sale of Shop no. 8, Central Market, Lajpat NagarII, Delhi24, of which the tenanted premises is a part, by registered documents dated 04.03.2009 in favour of Harbans Singh Kohli and wives of E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 10/74 the petitioners is alleged to have been cancelled vide cancellation deed dated 08.01.2014 and consequently it is alleged by the petitioners that they have become the owners of the entire shop no. 8 including the tenanted premises w.e.f. 08.01.2014, therefore, in terms of section 14 (6) of the Act no petition for recovery of possession on the ground of bonafide need could be filed unless a period of five years have elapsed from the date of acquisition. Thus the present petition is liable to be dismissed on this short ground as no such petition u/s 14 (1) (e) of the Act could be filed on or before 08.01.2019. 5.4 It was further pleaded that it is the admitted case of the petitioners that the premises comprises of 278 sq. ft. of space on the ground floor in terms of registered lease and conveyance deed dated 14.11.1965 as was executed in favour of Late Sh. Natha Singh. However after allotment of tehbazari rights to him i.e. portion shown as C,D, E & F in front of the said shop measuring 6 x 14 feet, both these spaces have been merged together forming one shop being shop no. 8, Central Market, Lajpat NagarII, New Delhi. It was further pleaded that thus the suit property has been constructed on the space allotted to Sh. Natha Singh as tehbazari rights and no ownership right can be asserted in respect of the tehbazari rights nor a petition for bonafide need is maintainable. It was further pleaded that vide letter dated 08.07.1985 issued by MCD the shopkeepers are not allowed to E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 11/74 claim ownership on tehbazari space and thus the present petition is not maintainable.

5.5 It was further pleaded that respondent was inducted as a tenant in the tenanted premises which is part of shop no. 8, Central Market, Lajpat Nagar, New Delhi in the year 1978 by the father of petitioners and he happens to be the owner of the same. It was further pleaded that in the present facts and circumstances the landlordtenant relationship between the petitioners and respondent is denied as the respondent was inducted as a tenant in the tenanted premises by the father of petitioners in the year 1978 and the respondent has been paying monthly rent diligently to the father of the petitioners till date, hence the petitioners have no right to seek the eviction of the respondent from the tenanted premises. 5.6 It was further pleaded that the respondent has been carrying on his business in the name and style of Shilpa Beauty Corner from the tenanted premises which was let out him vide rent note dated 20.10.1978 by the father of the petitioners and the rent has been regularly paid to him and at no point of time rent was ever paid to the petitioners as the petitioners are not the landlords or owners of the premises in question. E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 12/74 5.7 It was further pleaded that part of the tenanted premises includes portion under tehbazari and is accordingly not owned by Sh. Harbans Singh Kohli or the petitioners.

5.8 It was further pleaded that respondent has no knowledge about any interse arrangement amongst the family of Sh. Harbans Singh Kohli including relinquishment deed. It was further pleaded that Harbans Singh Kohli continued to be the landlord of the tenanted premises right from the inception of the tenancy of the respondent and the rent has been regularly paid to him till date. It was denied that the petitioner became the owner of the shop no. 8, Central Market, Lajpat Nagar, New Delhi on execution of the alleged gift deed.

5.9 It was further pleaded that it is in the knowledge of respondent that front portion of tenanted premises has been on tehbazari however it is not known whether same is in the name of petitioners or somebody else. 5.10 It was pleaded that Harbans Singh Kohli has been running a sweet shop under the name and style of Kohli Sweets from a portion of shop no. 8 as well as from the portion of tehbazari however it was denied that Sh. E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 13/74 Harbans Singh Kohli started business of artificial jewellery from the said portion and it was averred that he continues to carry out his business of sweet shop even today.

5.11 It was further pleaded that as is clear from the site plan a surplus accommodation is available with the petitioners to do their business. It was pleaded that it is not clear whether the shops towards the gali including the tenanted premises is teh bazari portion. 5.12 It was pleaded that extensive construction was carried out by Sh. Harbans Singh Kohli whereby a basement was constructed underneath property/shop no. 8 and the entire basement along with entire ground floor, barring 3 small shops, coupled with the tehbazari portion has been available with the landlord who has been carrying on his business under the name and style of Kohli Sweets Munchin and M/s Kohli Munchin. It was pleaded that thus excess commercial space for carrying on the business is available with landlord Mr. Harbans Singh Kohli and the present petition depicts their malafide intentions.

5.13 It was denied that there was any temperamental differences as E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 14/74 alleged or that Sh. Harbans Singh Kohli and petitioners could not carry out their business jointly. It was pleaded that it is false and concocted ground being created in order to sustain their petition for bonafide need though there is no merit at all.

5.14 It was further pleaded that landlord got shop no. 8 vacated from M/s Sarwaswati Bangles India Pvt. Ltd in January 2014 and same is available to the landlord and the petitioners and it is not the case of petitioners that commercial accommodation available with them is inadequate or insufficient. It was further pleaded that it is admitted case of petitioners that father of petitioners along with petitioners have been carrying on their business under the name and style of "Kohli Munchin"

which is a sort of restaurant and there is sitting arrangement for the customers as well as counter for sale of food items and sweets etc. It was further pleaded that huge spaces on the ground floor as well as basement are available with the petitioners along with teh bazari rights.

5.15 It was denied that petitioners have no source of income or that they are unemployed and it was pleaded that petitioners have been carrying on business with their father for last many years and they are staying in a E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 15/74 joint family as they are residing in the same premises. It was pleaded that they are carrying on business from the same premises and they have several premises available and the family has sufficient rental income. It was further pleaded that petitioners and their father are doing business and are having sufficient source of income both from the business as well as from rental.

5.16 It was denied that father of petitioners and petitioners have any disagreement among themselves or that petitioners have desire to start their separate business. It was pleaded that petitioners are already doing their business under the name and style of Kohli Munchin and father is carrying on business under the name and style of Kohli Sweets shop.

5.17 It was denied that because of the tenants the shop could not be partitioned or that petitioners could not start their independent business from the shop shown in green and yellow colour and the basement or that the small shops in occupation of three tenants i.e. shop no. 8A, 8B and 8C which includes the tenanted premises are creating any hurdle in any manner or that the partition was possible only after the vacation of the tenanted premises and other shops. It was pleaded that the petitioners are already E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 16/74 doing their business under the name and style of Kohli Munchin from the huge space available with them on the ground floor as well as from the basement and their business is flourishing.

5.18 It was pleaded that father of petitioners is very old and the whole business is being run by the petitioners. It was further pleaded that family of petitioners have joint properties and entire family members are staying together and the documents as mentioned in the petition have been created with a view to create a bonafide need but it is otherwise far from reality.

5.19 It was pleaded that there is no interse dispute amongst the family members and they are staying together and there is no need for the petitioners to establish independent business or to divide the shop in question. It was pleaded that there is no bonafide or genuine need and the petition has been merely filed for the purpose of partitioning and dividing the entire available space into independent business establishments which otherwise is not needed and which is not covered under section 14 (1) (e) of Delhi Rent Control Act.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 17/74 5.20 It was further pleaded that the petitioners have no need or bonafide need for commercial accommodation as such as various properties are available to them and their family members such as property no. A94, Lajpat NagarI, New Delhi, B54, Lajpat NagarII, New Delhi, E11/36, Lajpat Nagar New Delhi and other properties which are suppressed and concealed. It was pleaded that part of property no. A94 which comprises of basement to third floor is used for commercial purposes by the family members of the petitioners as well as by the tenants. It was pleaded that property no. B54 is a multistory building and fully commercial.

5.21 Hence it was pleaded that the need being not genuine or bonafide the petition should be dismissed.

Replication

6. In the replication the petitioners denied and controverted all the allegations as levelled in the Written Statement and reiterated and reaffirmed the facts as stated in the petition.

6.1 In addition it was averred that on the execution of gift deed with respect to entire shop on 20.11.2006 Sh. Harbans Singh is left with no right, E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 18/74 title or interest in the shop no.8, Central Market, Lajpat NagarII, New Delhi. It was averred that there was no sale of part of shop no. 8 owned by the petitioners and there were mere agreements to sell which were executed in the favour of petitioners and their respective wives on 04.03.2009 and immediately on the vacation of the premises by the tenant in January 2014 the said agreements were cancelled on 08.01.2014. It was averred that the petitioners continued to be the owner of the entire shop including the tenanted shop after the execution of gift deed dated 20.11.2006. It was denied that suit property is constructed on a portion which was allotted to Sh. Natha Singh on Tehbazari. It was also denied that respondent is paying rent to Sh. Harbans Singh. It was averred that after execution of the Gift deed dated 20.11.2006 in favour of the petitioners Sh. Harbans Singh was left with no right, title or interest in the suit property and the respondent has been paying rent to the petitioners till filing of this petition and after receiving notice of this petition, the respondent has stopped paying the rent to the petitioners.

6.2 It was denied that Harbans Singh Kohli continues to carry out his business of sweets shop or that the landlords are carrying out their business in the name and style of Kohli Munchin. It was averred that Harbans Singh is around 72 years old, sick and is living a retired life. It was E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 19/74 averred that only petitioner no. 2 is carrying out his business under the name and style of Kohli Munchin.

6.3 It was denied that there is surplus accommodation available with the petitioners to do their business. It was denied that several premises are available with the petitioners.

6.4 It was averred that property no. B54 Lajpat Nagar II and A94, Lajpat Nagar I are residential properties, residential in nature and used for residential purposes and they are not suitable for use for commercial purposes in comparison to shop no. 8, Central Market, Lajpat NagarII. 6.5 It was denied that property no. EII/36, Lajpat Nagar is available to the petitioners or that the said fact has been suppressed and concealed by them. It was averred that since both the petitioners were having no job to do and were married, their father to keep both the petitioners busy and to settle them purchased property no. E11/36, Lajpat Nagar in the name of petitioners by virtue of sale deed dated 27.11.2001. It was further averred that thereafter petitioners redeveloped the said property and constructed basement, ground, first, second and third floor in the same and after E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 20/74 redevelopment the said property was sold to various people way back in the year 200304 i.e. basement was sold to one Smt. Jaspal Kaur and its other part to one Vijay Verma, part of ground floor was sold to one Dr. Seema Aggarwal and Smt. Chanderkanta Aggarwal and its other part sold to one Sudhanshu Modi, part of first floor was sold to one Neeru Khungar and the other part to one Hardeviji Lala, part of second floor was sold to Naresh Mehta and other part to Smt. Promila Sethi and part of third floor with terrace was sold to Sudarshan Malik and other part with terrace to Satwant Kaur and presently none of the portion is in the possession or occupation of the petitioners in the said property.

7. Thereafter the parties led their respective evidence. Petitioner evidence

8. The petitioners examined petitioner no. 1 as PW 1 and he filed his evidence by way of affidavit as Ex. PW 1/A and relied upon the following documents:

(a) Site plan as Ex. PW1/1.

(b) Copy of lease and conveyance deed dated 14.09.1965 as Ex. PW1/2 E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 21/74

(d) three receipt issued by MCD for teh bazari as Ex. PW1/4 (colly).

(e) Copy of registered gift deed dated 20.11.2006 as Ex. PW1/5

(f) Cancelled copy of the agreements to sell as Ex. PW1/6 to Ex. PW1/8

(g) copy of registered lease deed executed by both the petitioners as Ex. PW1/9 and Ex. PW/10

(h) Copy of lease deed executed by petitioner's father and their respective wives in favour of tenant M/s Sarasvati Bangle as Ex. PW1/11 to Ex. PW1/13

(i) Copy of cancellation of agreement executed by both the petitioners and wife of petitioner no. 1 as Ex. PW1/14.

(j) Copy of cancellation agreement between the petitioners and their father as Ex. PW1/15.

(k) Copy of cancellation of agreement executed by both the petitioners and wife of petitioner no. 2 as Ex. PW1/16.

(l) Copy of house tax receipt along with self assessment property tax form for 20092010 as Ex. PW1/17.

(m) Copy of house tax receipt for the year 201415 as Ex. PW1/18.

(n) Copy of sale deed of property bearing no. B54 as Ex. PW1/19. 8.1 Petitioner no. 2 Sh. Narinder Singh Kohli examined himself as PW2 and tendered his evidence by way of affidavit as Ex. PW2/A and relied upon the following documents:

(a) copy of receipt for health trade processing fee dated 04.03.2014 E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 22/74 from MCD as Ex. PW2/1 and

(b) copy of health trade new registration fee issued by MCD as Ex. PW2/2.

8.2 Thereafter PE was closed vide orders dated 23.09.2015. Respondent's Evidence

9. Respondent led his evidence as under: 9.1 Respondent examined himself as RW1 and tendered his evidence by way of affidavit as Ex. RW1/A and relied upon the copy of rent deed/note as Mark A. 9.2 RW2 Sh. Mukesh Sharma tendered his evidence by way of affidavit as Ex. RW2/A and he also relied upon the rent deed/note as Mark A. 9.3 RW3 Sh. Arun Ahuja, Chartered Accountant proved the copies of acknowledgment of filing of income tax returns of Sh. Harbans Singh for the Assessment year 200910, 201011, 201112, 201213, 201314, 201415 and 201516 along with profit and loss account as Ex. RW3/1 to Ex. RW3/7 E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 23/74 and copies of filing of income tax returns of Sh. Narinder Singh Kohli for the Assessment year 200910, 201011, 201112, 201213, 201314, 201415 and 201516 as Ex. RW3/8 to Ex. RW3/13.

9.4 RW4 Sh. S.K. Sehgal, Head Clerk, Land and Estate Department, SDMC brought the summoned record i.e. record pertaining to shop no. 8, Central Market, Lajpat Nagar, New Delhi and proved that property is a leasehold property vide lease deed Ex. PW1/2. 9.5 RW4 (in fact RW5) Sh. Ashok Kumar Sharma, UDC, Sub Registrar Office V, Mehrauli, proved summoned record i.e. sale deed dated 27.11.2001 executed by one Ms. Shanta Kumari in favour of the petitioners in respect of built up property bearing no. EII/36, Lajpat Nagar, New Delhi measuring about 200 sq. yards as Ex. RW4/1.

9.6 RW5 (In fact RW6) Ms. Pravin Chhatwal, Inspector Income tax proved the summoned record in respect of Sh. Narinder Singh Kohli and Savinder Singh Kohli for the FY 200001 till AY 201516 as Ex. RW5/1 (colly) and Ex. RW5/2 (colly).

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 24/74 9.7 Thereafter RE was closed vide orders dated 09.06.2016. Findings

10. I have heard the learned counsels for the petitioners and the respondent and have carefully gone through the record.

11. In order to succeed in a petition for eviction filed under section 14 (1) (e) of the Delhi Rent Control Act the petitioner must establish that:

1. He is the owner and landlord in respect of the tenanted premises.

2. That he requires the premises bonafide for himself or for any member of his family dependent upon him.

3. That he has no other reasonably suitable accommodation.

12. The scope of the section has been enlarged in view of the judgment of the Hon'ble Supreme Court titled as "Satyawati Sharma v. Union of India" reported as AIR 2008 SUPREME COURT 3148 so as to include premises let out for commercial purposes also within the scope and ambit of a petition under section 14(1)(e) of DRC Act. Landlord/owner E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 25/74

13. The foremost requirement for the petitioners to succeed in a petition under section 14 (1) (e) is that they have to prove that they are the landlords and that there is a relationship of landlords and tenant between the parties and that they are the owners of the tenanted property/premises. 13.1 In the case at hand, a careful scrutiny of the pleadings of the parties would reveal that as far as relationship of landlords and tenant is concerned there is no real dispute regarding the same and the dispute if any has been raised by the respondent for the sake of it. Though the respondent denied the relationship of tenant and landlords between him and the petitioners however the respondent categorically admitted that he had taken the premises on rent from their father namely Sh. Harbans Singh Kohli. The respondent claimed that the tenanted premises was let out to him by Sh. Harbans Singh Kohli in the year 1978 and since then he has been in occupation of the same.

13.2 The petitioners proved that the tenanted premises which is part of property/shop no. 8, Central Market was gifted to them by Sh. Harbans Singh Kohli (their father). They proved this registered gift deed dated 20.11.2006 on record as Ex. PW1/5. Upon the execution of this gift deed the E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 26/74 petitioners indeed became the owner of the said property/shop which includes the tenanted premises.

13.3 Though ownership rights of Sh. Harbans Singh Kohli were never challenged nonetheless to prove that Sh. Harbans Singh Kohli had the right to gift the said property to the petitioners (his sons) the petitioners proved on record the registered lease and conveyance deed dated 14.09.1965 i.e. Ex. PW1/2 vide which the property was given on perpetual lease to Sh. Natha Singh i.e. their grandfather (father of Sh. Harbans Singh Kohli). They also proved on record the relinquishment deed dated 10.06.1982 executed by the other legal heirs of Sh. Natha Singh in favour of Sh. Harbans Singh Kohli as Ex. PW1/3 whereby the other LRs of Sh. Natha Singh relinquished their share in the shop no. 8 in favour of Sh. Harbans Singh Kohli. 13.4 Hence the petitioners proved the entire factual matrix on record by which the property ultimately came to their share and how they became the owner of the same.

13.5 Apart from the evidence led by the petitioners even from the statement made by the respondent during his cross examination no doubt remains that the petitioners are the landlords and the owners of the tenanted E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 27/74 premises. The relevant portion of the cross examination in this regard read as under: "....................It is correct that Sardar Harbans Singh Kohli was the owner of the suit shop...........I had paid the rent till the present case was filed. Vol. Thereafter I tendered the rent but petitioners refused to accept the same. It is correct that Harbans Singh by a registered Gift Deed dated 20.11.2006 gifted the entire shop no. 8, Central Market, Lajpat Nagar, New Delhi to the petitioners and since then both the petitioners are the owners of the said shop. Vol. The shop under my tenancy was not gifted. It is correct that the shop under my tenancy is part of shop no. 8, Central Market, Lajpat NagarII, New Delhi."

He further went on to state that:

"........Mr. Harbans Singh father of the petitioners was my landlord till he executed gift deed in favour of the petitioners. Both the petitioners might be landlord of the suit property."

13.6 Hence it stands squarely proved in view of Ex. PW1/2, Ex. PW1/3 and Ex. PW1/5 as well as the statement, which are in fact admissions, made by the respondent during his cross examination that the petitioners are the landlords as well as the owners of the tenanted premises. 13.7 During the course of arguments Ld. Counsel for the respondent vehemently argued that the petitioners are not the owners and the present petition is not maintainable for numerous reasons.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 28/74 13.8 It was argued that as per the case of the petitioners after the registered gift deed i.e. Ex. PW1/5 the property/shop no. 8 including the tenanted premises allegedly came to their share and they became the owners of the same however on account of registered agreements to sell dated 04.03.2009 which are on record Ex. PW1/6 to 8 coupled with the registered lease deeds of the even date i.e. Ex. PW1/9 to 13 it becomes apparently clear that the petitioners no longer remained the owners of property/shop no. 8 which includes the tenanted premises and atleast they did not remain the sole owners and in fact their wives and father became the coowner and in the absence of the coowners being impleaded the petition is liable to be dismissed.

13.9 However I find no merits in the said contentions of the Ld. Counsel for the respondent. The registered agreements to sell i.e. Ex. PW1/6 to 8 did not bestow any right or title or ownership in favour of the petitioners's respective wives or their father. Immovable property can only be sold as is provided u/s 54 of the Transfer of the Property Act, 1882. An agreement to sell even if it is registered does not create any right or title in favour of intending buyer. (Meghmala Vs. G. Narasimha Reddy (2010) 8 SCC 383). An agreement to sell is merely a document creating a right to obtain another document on fulfillment of terms and conditions specified E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 29/74 therein. On the strength of such an agreement a buyer does not become the owner of the property. The ownership remains with the seller. It will be transferred to the buyer only on the execution of the sale deed by the seller. The buyer obtains only a right to get the sale deed executed in his favour and nothing else. The transfer is complete only upon execution of sale deed. Further reliance may be placed upon the law laid down by the Hon'ble Apex Court in Suraj Lamp and Industries (P) Ltd. Vs. State of Haryana (2009) 7 SCC 363, Suraj Lamp and Industries (P) Ltd. (2) Vs. State of Haryana (2012) 1 SCC 656 and Maya Devi Vs. Lalta Prasad (2015) 5 SCC 588. Therefore despite execution of registered agreements to sell the ownership of shop no. 8 which includes the tenanted premises remained with the petitioners in view of registered gift deed Ex. PW1/5 and in the absence of any registered sale deeds to the contrary.

13.10 Furthermore as far as these agreements to sell are concerned i.e. Ex. PW1/6 to 8 it was explained by the petitioners that these documents were executed merely to avoid the tax liability. The petitioners duly explained that the sole purpose behind execution of those documents was to save tax which would have accrued upon the petitioners on account of entering into lease agreement with M/s Saraswati Bangles India Pvt. Ltd. E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 30/74 Petitioner no. 1 during his cross examination in this regard stated as "It was decided with the tenant (Saraswati Bangles India Pvt. Ltd.) and my father to create five tenancy to save tax....................To save income tax, five separate lease deed were executed creating lease in favour of Saraswati Bangles Pvt. Ltd.". Petitioner no. 2's deposition in this regard read as "the agreement to sell was executed by us for the tax purposes and we were able to save tax..........................Father also let out the said premises to Saraswati Bangles, it was only on papers to save tax....." This explanation finds merit in view of the fact that the agreements to sell i.e. Ex. PW1/6 to 8 executed in favour of their father and respective wives by the petitioners was done on the same day i.e. 04.03.2009 when the registered lease deed was entered by the petitioners, their father and their respective wives vide Ex. PW1/9 to 13 with M/s Saraswati Bangles. Furthermore the very fact that the agreements to sell were cancelled vide Ex. PW1/14 to 16 upon vacation of the property by M/s Saraswati Bangles on account of termination of the lease by the petitioners and their wives goes on to prove that the sole purpose of the agreements to sell was to save the tax.

13.11 Therefore these agreements i.e. Ex. PW1/6 to Ex.PW1/8 did not bestow any ownership rights upon the father of the petitioners or their respective wives and it was merely an interse arrangement between the petitioners and other family members. The respondent has nothing to do E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 31/74 with the same. Reliance may be placed upon the law laid down in Yashpal Vs. Chaman Lal Sachdeva, 129 (2006) DLT 200.

13.12 Nonetheless, though there is nothing to suggest the same, however even if it is agreed that the petitioners divested themselves of their ownership rights in respect of shop no. 8 of which the tenanted premises is a part in view of the agreements to sell i.e. Ex. PW1/6 to 8, it is to be seen that they had not completely sold off the same or agreed to sell the same in the entirety. Even after execution of registered agreements to sell i.e. Ex. PW1/6 to 8 the petitioners continued to remain owner of 20% share each i.e. total 40% of the undivided share in the said shop no. 8. They had only agreed to sell 20% share each to their father and their respective wives thereby still leaving them with 40% share. Even in that capacity i.e. being the coowners of the tenanted premises they are entitled to maintain the petition and seek eviction from the respondent. Reliance may be placed upon the law laid down by Hon'ble Apex Court in Dhannalal vs Kalawatibai And Ors decided on 8 July, 2002 in Appeal (civil) no. 3652 of 2002 wherein it was held as under:

"It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath and Ors., [1976] 4 SCC 184, Kanta Gael v.

B.P. Pathan and Ors ., [1977] 2 SCC 814 and Pal Singh v. Sunder Singh (dead) by Lrs. and Ors., [1989] 1 SCC 444 that one of the co E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 32/74 owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other coowners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every coowner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner 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 tenant without joining the other coowners if such other co owners do not object."

13.13 In M/s. India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandel Agarwalla (dead ) by Lrs. And Ors. AIR 2004 Supreme Court 1321, Hon'ble Supreme Court observed that "one of the coowner can file a suit for eviction of a tenant in the property generally owned by the Coowners and this principle was based on doctrine of agency. One coowner filing a suit for eviction against the tenant does so, on his own behalf in his own right and also as an agent of the other coowners. The consent of other coowners is assumed as taken unless it is shown that the other coowners were not agreeable to eject the tenant".

13.14 Further reliance may placed on the law laid down in Shri Ram Pasreja Vs. Jagan nath and ors. AIR 1976 SC 2335, Laxmi Shankar Hari Shankar Bhatt Vs. Yashram Vasta (dead) by LRs AIR 1993 SC 1587, Krishan Lal Vs. Rajan Chand Khanna AIR 1993 Delhi 1 and Fibre Bond (Sales) Pvt.Ltd. Vs. Smt. Chand Rani 1993 (1) RCR 492. E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 33/74 13.15 Therefore being admittedly the landlords, owners in view of Ex. PW1/5 i.e. registered gift deed executed by Sh. Harbans Singh Kohli, legal heirs of the admitted original owner/landlord Sh. Harbans Singh Kohli to whom shop no. 8 of which the tenanted premises is a part was given on perpetual lease in view of lease and conveyance deed Ex. PW1/2 and in whose favour the other legal heirs executed the relinquishment deed Ex. PW1/3 and even in light of Ex. PW1/6 to 8 which were ultimately cancelled vide Ex. PW1/14 to 16 and the admissions made by the respondent regarding the status of the petitioners, the petitioners have right to maintain the eviction petition and the respondent cannot challenge their right as landlords or as owners of the tenanted premises.

13.16 Once the respondent admits the relationship of landlord and tenant as discussed above he is estopped from challenging the ownership rights of the landlord.

13.17 The law is well settled that to succeed in a petition under section 14 (1) (e) of Delhi Rent Control Act the landlord is not supposed to prove absolute ownership as required under the Transfer of Property Act. He is required to show that he is more than a tenant.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 34/74 13.18 In Bharat Bhushan Vij Vs. Arti Techchandani 2008 (153) DLT 247, in para 4 and 5 it was held as under:

"the concept of ownership in a landlord tenant litigation governed by the Delhi Rent Control Act, has to be distinguished from the one in a title suit . If the premises was let out by a person and after the death , the premises has come in the hands of a beneficiary under a Will, the tenant has no right to challenge the title of such a beneficiary. If on the death of the original owner, the tenant has any doubt as to who was the owner of the premises, he is supposed to file an interpleader suit impleading all the legal heirs of the deceased and ask the court to decide as to who shall be the landlord / owner after the death of the original owner. Where no interpleader suit is filed by the tenant and the tenant continues in possession after the death of original owner without demur and without raising any objection against the person , who claims to have inherited the property under Will, he later on cannot challenge the ownership of such a person. It is not the domain of the tenant to challenge the Will of the deceased landlord. If a landlord is able to show there is a testament in his / her favour, he is deemed to have discharged his burden of proving under the Act. If the tenant takes a frivolous objection about ownership, such an objection cannot be entertained unless the tenant comes forward as to who was the landlord / owner of the premises and to whom he has been paying rent after the death of original owner."

13.19 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 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 E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 35/74 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."

13.20 In Meenakshi Vs. Ramesh Khanna and anr. , 60(1995) DLT 524 it was held as under:

" mere denial of ownership is no denial at all. It has to be something more. The object of the requirement contained in clause (e ) that the petitioner should be the owner of the premises is not to provide an additional ground to the tenant to delay the proceedings by simply denying the ownership of the landlord of the premises and thereby putting him to proof by way of a full fledged trial. The object seems to be to ensure that the provision is not misused by the people having no legal right or interest in the premises. In proceedings under section 14 (1) (e) of the Act, the tenant is never a contender for title to the property........For this first and foremost thing which has always been considered as a good guide is , does that tenant say who else is the owner of the premises, if not the petitioner? Thus the tenant has to specify about the actual owner, in case he denies the ownership of the petitioner / landlord."

13.21 The landlord is thus not supposed to prove absolute ownership. It is no more resintegra that in a suit between landlord and tenant, it is only the title as landlord which is relevant and not the title as "owner". He is only to prove that he is something more than tenant and is /was collecting rent not for someone else but for himself. In the present case, respondent has admitted the relationship of landlord and tenant and therefore it is not open for the respondent to challenge the ownership right of the landlord. In fact E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 36/74 the law estops him from doing so.

13.22 In Capt. Praveen Davar (Retd.) & Another Vs. Harvansh Kumari and Ors; 2010 (119) DRJ 560, High Court of Delhi, it was held as under :

"15............ Reliance placed in this regard by the learned trial court on the provisions of Section 116 of the Evidence Act and the following observations of the Supreme Court in Anar Devi v. Nathu Ram, 1994 (2) RCJ 103, conclusively clinches the issues: "Section 116 of the Evidence Act applies and estops even a person already in possession as tenant under the landlord from denying the title of his subsequent landlord when once he acknowledges him as his landlord by attornment of conduct. "

13.23 In the judgment tiled as Ramesh Chand Vs. Uganti Devi reported as 157 (2009) DLT 450 the Hon'ble High Court of Delhi held:

"....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 E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 37/74 whom he is paying rent, acts dishonestly....."

13.24 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."

13.25 In judgment tiled as Rajender Kumar Sharma vs Smt. Leela Wati reported as 155 (2008) DLT 383 the Hon'ble High Court of Delhi held:

".......It is settled law that for the purpose of Section 14(1)(e) of Delhi Rent Control Act, a landlord is not supposed to prove absolute ownership as required under Transfer of Property Act. He is required to show only that he is more than a tenant."

13.26 The Hon'ble Supreme Court of India in Shanti Sharma and Ors. Vs. Ved Prabha and Ors 33 (1987) DLT 80 had the occasion to consider the import of word owner in context of section 14(1) (e) of Delhi Rent Control Act and observed as under:

"..................................................... this 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 bonafide requirement is one of such ground on the basis of which landlords have been permitted to have eviction of a tenant. In this context, the phrase "owner" thereof has to be understood, and it is clear that what is contemplated is that where the person builds up his property and lets out to the tenant and subsequently needs it for his own use , he should be entitled to an order or decree for eviction , the only thing necessary for him to prove is bonafide E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 38/74 requirement and that he is the owner thereof. In this context what appears to be the meaning of the term "owner" is vis a vis with the tenant ie the owner should be something more than the tenant"..... It is not the concern of the tenant as to how the landlord acquired the property .

13.27 In T C Rekhi Vs. Usha Gujral, 1971 RCJ 322, at page 326 it was observed that :

"the word "owner" as used in this clause has to be considered in the background of the purpose and object of enacting it. Use of the word "owner" in this clause seems to have been inspired by the definition of word "landlord" as contained in section 2 (e) of the Delhi Rent Control Act which is wide enough to include a person receiving or entitled to receive the rent of any premises on account of or on behalf of or for the benefit of any other person."

13.28 It was also argued by Ld. Counsel for the respondent that the petitioners having sold 60% of the undivided share in the shop no. 8 of which tenanted premises is a part vide agreements to sell Ex. PW1/6 to 8 again became owner of the said 60% undivided share on account of cancellation of the agreements i.e. Ex. PW1/14 to 16. It was argued that thus they became the owner of the entire said shop only w.e.f. 08.01.2014 and therefore the petition as under consideration could be filed only after lapse of 5 years from 08.01.2014 in view of embargo provided u/s 14 (6) of the Delhi Rent Control Act 1958 i.e. the petition could have been filed only after 08.01.2019. However I find no merits in the said argument of Ld. Counsel E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 39/74 for the respondent. It has been discussed above in detail that the petitioners continued to remain owners of the entire shop which includes the tenanted premises even after the execution of agreements to sell i.e. Ex. PW1/6 to 8. No property rights were transferred in favour of either their father or their wives merely on account of execution of the above documents. Therefore embargo under section 14 (6) does not come into picture. When they were not divested of their ownership rights by virtue of Ex. PW1/6 to 8 and continued to remain owners vide Ex. PW1/5 no question arises of acquisition of the said property on account of execution of Ex. PW1/14 to 16 i.e. cancellation agreements. Even otherwise it is not a case wherein the property has been acquired for the first time by the petitioners. They always remained the owners of the undivided share even after the execution of Ex. PW1/6 to 8 which otherwise as discussed above did not divest them of their ownership rights. Reliance may be placed upon the law laid down in V.N. Sarin Vs. Major Ajit Kumar Poplai AIR 1966 SC 482 and Amit Gupta and ors Vs. Dwarka Nath and ors. CRP No. 969/2001 decided on 06.05.2011 by the Hon'ble High Court of Delhi.

13.29 It was also one of the arguments of Ld. Counsel for respondent that the tenanted premises in fact forms part of the tehbazari area/portion E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 40/74 given to the father of petitioners vide Ex. PW1/4 and therefore the petitioners having no ownership rights in respect of the tehbazari portion the present petition is liable to be dismissed.

13.30 However the said argument of Ld. Counsel for the respondent are absolutely meritless and in fact flimsy. I have gone through the site plan Ex. PW1/1. The site plan is not disputed. The respondent has not filed his own site plan and therefore I find no reasons to doubt the correctness of the site plan filed by the petitioners. Reliance may be placed upon the law laid down in R.K. Bhatnagar vs. Sushila Bhargav 1986 RLR 232 and Jagmohan Singh vs K.M. Bhatnagar 1995 RLR 527 wherein it has been held that "if tenant does not file any site plan, the site plan filed by petitioner is assumed to be correct".

13.31 In the site plan Ex. PW1/1 the tenanted premises is shown in red colour and is bearing no. 8A. The other parts of the shop under tenancy of different tenants are also clearly shown as 8B and 8C. The space already available with the petitioner is shown in green colour. As far as the area of tehbazari is concerned same is clearly shown in yellow colour. There is a portion between the area under tehbazari and the shop no. 8 as allotted to E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 41/74 the petitioner's father which has not been let out to anybody and is available with the petitioners. The areas are distinguishable and there is no overlapping. As discussed above site plan having not been disputed I find no reasons to doubt its correctness. If indeed the site plan was incorrect or there was any overlapping between shop no. 8 of which tenanted premises is a part and the area under tehbazari nothing stopped the respondent from filing of his own site plan.

13.32 In fact the fallacy of the argument is writ large from the following admissions made by the respondent during his cross examination.

"..............I have seen Ex. PW1/1 and the shop bearing private no. 8A and marked red in the site plan is under my tenancy. The shop under my tenancy is not in the portion which is under Tehbazari.........It is correct that the portion shown in yellow colour and marked between C,D, E, F in Ex. PW1/1 is under the teh bazari."

13.33 Therefore the arguments being meritless stands dismissed. The petitioners are the landlords and definitely have ownership rights in respect of the tenanted premises for the purposes of section 14 (1) (e) of the DRC Act.

Bonafide requirement and non availability of reasonably suitable E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 42/74 alternate accommodation

14. The prime question to be answered is as to whether the tenanted premises is required bonafide by the petitioners and that the petitioners have no other reasonably suitable alternative accommodation. 14.1 The most essential requirement to be proved by the petitioners to succeed in the eviction petition is that the tenanted premises is required by them for their bonafide needs. In the case at hand the bonafide need/requirement raised by the petitioners is that the portion of the shop available with them which is shown in green colour in the site plan coupled with the yellow portion i.e. tehbazari portion is not sufficient for them to start their independent businesses. It is their case that they have already filed petition on the ground of bonafide requirement in respect of shop no. 8B and 8C as shown in the site plan as the petitioners intend to partition/divide the said shop no. 8 amongst themselves as soon as the tenanted shops (8A, 8B and 8C) are vacated so as to start their own/ independent businesses from the respective shares upon partition as despite their best efforts and due to the temperamental differences between them they are not able to carry on a joint business. It is their case that once the tenanted premises is available with them coupled with shop no. 8B and 8C E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 43/74 they can divide the entire shop no. 8 in a manner that it can be used by both the petitioners to carry on their independent businesses. It is further their case that apart from shop no. 8 they have no other similarly suitable property or accommodation to start their independent businesses and the properties/accommodations available with them are residential properties and not as ideally suitable as shop no. 8 of which the tenanted premises is a part.

14.2 As far as law regarding bonafide is concerned in Shiv Gupta v. Dr. Mahesh Chand Gupta , 1999 AIR (SC) 2507 , it was held by Hon'ble Apex Court that:

12. 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 E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 44/74 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".

14.3 The Hon'ble Supreme Court also observed in Raghunath G. Panhale (Dead) by LRs. Vs. Chaganlal Sundarji and Co. (1999) 8 SCC that:

"The word "reasonable" connotes that the requirement or need is not fanciful or unreasonable. It cannot be a mere desire. The word "requirement" coupled with the word reasonable means that it must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. A reasonable and bona fide requirement is something in between a mere desire or wish on one hand and a compelling or dire or absolute necessity at the other end. It may be a need in praesenti or within reasonable proximity in the future."

14.4 In Jaswinder Singh Vs. Surinder Kaur, 204 (2013) DLT 716 , in para no. 14, it has been held as follows:

"14. . As per law, bonafide requirement has to be seen and considered from the perspective of the landlord and tenant cannot be allowed to dictate the terms in which portion the landlord should reside."

14.5 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 his own occupation the Rent Controller shall E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 45/74 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." 14.6 In Shiv Sarup Gupta Vs. Dr. Mahesh Chand Gupta , 1999 (6) SCC 222 it has been observed that " ............ 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 is 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.

14.7 In Sait Nagjee Purushotham & Co. Ltd. Vs. Vimlabai Prabhulal & Ors, (2005) 8 SCC 252 , it has been held in para 4 as follows:

" . It is always the prerogative of the landlord that if, he requires the premises in question for his bonafide use for expansion of business, this is no ground to say that the landlords are already having their business at Chennai and Hyderabad therefore, it is not a genuine need. It is not the tenant who can dictate the terms to the landlord and advice him what he should do or what he should not. It is always the privilege of the landlord to choose the nature of business and the place of business. ".

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 46/74 14.8 From the above judgments, it is evident that landlord is the best judge of his premises. It is well settled law that the requirement or need not be fanciful or unreasonable. It cannot be a mere desire and must be something more than a mere desire but need not certainly be a compelling or absolute or dire necessity. It may be a need in praesenti or within a reasonable proximity in the future.

14.9 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."

14.10 It will also be worthwhile to note down the observations of Hon. Apex court at para 12 of Satyawati's judgment (Supra) which are as under: E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 47/74 " In Joginder Pal vs. Naval Kishore Behal [2002 (5) SCC 3971], the Court after noticing several judicial precedents on the subject observed as under:

"The rent control legislations are heavily loaded in favour of the tenants treating them as weaker sections of the society requiring legislative protection against exploitation and unscrupulous devices of greedy landlords. The legislative intent has to be respected by the courts while interpreting the laws. But it is being uncharitable to legislatures if they are attributed with an intention that they lean only in favour of the tenants and while being fair to the tenants, go to the extent of being unfair to the landlords. The legislature is fair to the tenants and to the landlords both. The courts have to adopt a reasonable and balanced approach while interpreting rent control legislations starting with an assumption that an equal treatment has been meted out to both the sections of the society. In spite of the overall balance tilting in favour of the tenants, while interpreting such of the provisions as take care of the interest of the landlord the court should not hesitate in leaning in favour of the landlords. Such provisions are engrafted in rent control legislations to take care of those situations where the landlords too are weak and feeble and feel humble.

14.11 Further 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. Reliance may be placed upon the law laid down in Baldev Singh Bajwa v. Monish Saini reported as (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 E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 48/74 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.."

14.12 In the case at hand I have no reasons to doubt the bonafide need expressed by the petitioners. The petitioners want to do their independent businesses. They cannot be stopped from doing so. In fact they have an absolute right/liberty to start their independent businesses and there cannot be any embargo on the same. As claimed by them they are unable to carry on joint business on account of temperamental differences. In this regard petitioner no. 1 during his cross examination stated as "we brothers were not on good terms, therefore, we could not do any business jointly and therefore, then we under the instructions of our father decided to let out this shop so that atleast some income could be generated." He stated that he tried to do business with his brother but could not run the same and hence the shop was let out to M/s Saraswati Bangles. He went on to state as under:

"we are not staying together with our father. I and my brother (petitioner no. 2) are also staying on different floors separately on second floor and first floor respectively in property no. A94, Lajpat Nagar - Part - I, New Delhi which is residential. My father has been residing on the ground floor of the said building. We have been staying apart as referred since the year 2006. Prior to that we were living together in same house. Since we could not run business together, differences had arisen between me and my brother in the year 2006 and we E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 49/74 started living separately. I had differences with my brother (petitioner no. 2) mainly due to the joint business.........We are having separate kitchens. It is wrong to suggest that I, petitioner no. 2 and my father are having common kitchen or that we are staying together on different floors."

14.13 Petitioner no. 2 in this regard stated as "after that because of disagreement with my brother, the shop no. 8 was given on rent by us and I received the proportionate rent of the said shop..........We two brothers somehow continued with the business for about 22.5 years from shop no. 8 but thereafter, there arose differences between me and my brother as both of us wanted to do separate businesses........" 14.14 Ld. Counsel for respondent argued that the claim of temperamental differences is sham as the petitioners are happily living together as a joint family and in fact there is no dispute amongst them. It was argued that the manner in which the property was let out to M/s Saraswati Bangles coupled with the fact that they are residing in the same house and also doing the business of property dealing, amply proves that there is no dispute amongst the petitioners and the claim of temperamental differences has been made merely to oust the respondent. However I find no merits in the arguments of the Ld. Counsel for respondent. To begin with whether there is indeed temperamental differences between the petitioners or not is not germane to the bonafide need expressed by the petitioners that they want to carry on their independent businesses. Even in the absence of E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 50/74 any temperamental differences the petitioners do have a right to carry on their independent businesses. The petitioners are married and have their respective families. They want to start their independent businesses and for this they need not quarrel with each other or turn inimical to each other or sore their relationship. All families have issues, disputes etc. some reach the police and the court and others do not. It is not necessary that every dispute or quarrel has to reach the courts or the parties have to shed their blood for the world to believe that they are having dispute or temperamental differences. Living together or living in one house is one thing and carrying on the business together is altogether something else. Families continue to live together but the businesses do get separated. In fact it was the case of petitioners that the property was let out to M/s Saraswati Bangles as the petitioners on account of their temperamental differences could not work together and hence it was decided to let out the shop to M/s Saraswati Bangles. The very fact that the lease deed was cancelled, the tenancy of Saraswati Bangles terminated prematurely despite the fact that huge rent of around Rs. 2,80,000/ was paid by Saraswati Bangles itself shows the bonafide need of the petitioners who want to do their independent businesses or else they could have continued to enjoy the rental income. 14.15 The petitioners have a right to carry on their respective E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 51/74 businesses for which the division of the shop in a manner which suits the proposed business/ endeavor of the petitioners is a must/sine qua non. Though Ld. Counsel for the respondent argued that firstly the shop cannot be partitioned or divided in view of the embargo created in the lease/ conveyance deed i.e. Ex. PW1/2. It was argued that the property is a leasehold property and as per the terms property cannot be partitioned or subdivided. Emphasis in this regard was laid upon the deposition of RW4 as well as the terms and conditions of Ex. PW1/2. It was therefore argued that once the ground on which the petition has been filed i.e. partition/ division of the shop is not permissible as per law then the petition is itself not maintainable. Secondly, it was argued that that even after partition the area, the dimension i.e. length and breadth which shall be available to the petitioners will be almost the same if they today partition the shop/the area as is available with them. It was argued that if today the shop (green colour as per Ex. PW1/1) is divided then the area that each of the petitioner will get will be somewhere around 4.5 ft. (width) x 20.7 ft. (length) i.e. around 93.15 sq. ft. Similarly if all the shops including the tenanted premises are vacated and then the shop is partitioned the area that will be available with the petitioners will be 12.11 ft. (length) x 10.3 ft. (width) approximately i.e. around 124.73 sq. ft i.e. just 30 sq. ft. extra. It was argued that hence the said need i.e. partition, which otherwise is not covered u/s 14 (1) (e), is not a E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 52/74 bonafide need.

14.16 However I do not agree with either of the contentions of the Ld. Counsel for the respondent. As far as the first contention is concerned it is to be seen that though there is some embargo in the lease and conveyance deed Ex. PW1/2 regarding the alteration, addition, division etc. in/of the shop in question however additions and alterations whether internal or external can nonetheless be done with the permission of the government. The petitioners can always approach the concerned department who allotted the said shop from making additions and alterations/deviations once they succeed in the eviction petition. Said aspect is solely between the petitioners and the concerned authority. The respondent does not and cannot have any say in the same.

14.17 As far as the statement of RW4 is concerned it is to be seen that RW4 in his cross examination admitted that "It is correct that two coowners of a shop can start their independent business from the aforesaid shop." The petitioners despite the temperamental differences they might be having are nonetheless real brothers and they are not sworn enemies. They can very well adjust to the extent that they can use the shop in a way that they are able E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 53/74 to carry their separate/ independent businesses without interfering in the others. Temporary partition walls, wooden or otherwise can always be there if not permanent changes as against the terms of lease deed. Further as discussed above they can always approach the concerned authority to seek permission to carry out the partition/division. In fact the respondent in his cross examination went on to state that "It is wrong to suggest that both the petitioners cannot carry out two different business activities individually from the shop bearing no. 8, Central Market, Lajpat Nagar, new Delhi." 14.18 Coming to the second contention of Ld. Counsel for respondent that the existing shop/area can be divided by the petitioners and the vacation of the tenanted premises or the other shops is not needed to divide the shop already available with the petitioners and that they can carry on their independent businesses after dividing the existing shop, same is also devoid of any merits. If the shop/area as available to the petitioners today is divided then undoubtedly both the petitioners will be left with their respective portions/shops but same will not be as ideal or suitable as would the case be if the tenanted premises is vacated and thereupon the shop is divided. Division of the existing area/shop would reduce the shops into a gali. The width will be 4.5 to 4.8 feet with a depth of around 20.7 feet. It is a matter of common knowledge that for a commercial establishment/shop a larger E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 54/74 front/entrance is always beneficial and lucrative to the shopkeeper and appealing to the customers. It is well known that a commercial establishment/business/shop requires a bigger entrance/front/opening to appear more appealing and approachable to the customers. For the practical use of the shopkeepers also a bigger front/width is needed to operate and move freely as well as to store the product to be sold by placing counters, desks etc. The division which shall take place after the tenanted premises is vacated shall be more suitable, ideal and beneficial to the petitioners. It will give them an area/dimension which will be rectangular if not almost square. 14.19 There is one more aspect. Admittedly there is a staircase leading to the basement under shop no. 8 and this staircase is located/constructed at the back/end of the shop in question and as such only one of the petitioners i.e. in whose share the portion of the shop containing the staircase comes will be able to utilize the same. If the other has to use the basement he has to necessarily enter the shop/shop of the other. Furthermore the area being utilized/ consumed in construction of the staircase the said person in whose share the shop/area containing the staircase comes will naturally have lessor area as compared to the other. However if the shops are otherwise divided as contemplated by the petitioners the person in whose share the area/shop containing the staircase E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 55/74 comes can have an exclusive use of the same and the other if he so desires can also construct staircase in his share/area and in that scenario both the shops and the staircases therein shall ideally exists, giving good access to the basement and leaving behind enough area in the shop to carry on the business. Hence the need expressed by the petitioners to do their independent businesses after partition of the shop is indeed genuine and bonafide one.

14.20 Ld. Counsel for the respondent had also argued that there is no bonafide need of the petitioners and in fact they have falsely claimed that they are unemployed i.e. without job or that they have no source of income. It was argued that they are into the business of property dealing and their income tax returns as proved by RW3 and RW5 (in fact RW6) proves that they are having good income which they cannot generate unless they have some source/are earning. It was argued that atleast their plea of being jobless or unemployed or to settle or establish themselves is a falsehood. 14.21 However I do not agree with the Ld. Counsel for the respondent. It is not the case of the petitioners, never has been that they are not having any income at all. Their case is that they need the tenanted E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 56/74 premises so as to divide shop no. 8 for carrying their independent businesses. As far as the deposition of RW3 is concerned, RW3 categorically stated that as far as Savinder Singh Kohli (petitioner no. 1) is concerned he has not being carrying on any business. I have gone through Ex. RW3/8 to 13 which reflects that for the Assessment Year from 200910 to 201516 he generated the income as is reflected therein as 5,71,176/, 7,86,683/, 5,99,991/, 5,10,031/, 8,29,447/, 5,47,658/ and 3,63,204/ etc. The part of the above income was on account of shop no. 8 being let out to Saraswati Bangles which income is no longer available on account of termination of tenancy. Furthermore he has been receiving rent from other property i.e. B54 which has been let out for residential use. Except for the rental income the respondent has not been able to show that the petitioner no. 1 is having any other source of income or carrying on his own business from some other place/property. The only space/shop/area available is being utilized by petitioner no. 2 who is carrying on his business under the name and style of M/s Kohli Munchin. Petitioner no. 1 even if he has some income from some source, still he has the absolute right to carry on/start his independent business and also to choose the shop from which he intends to carry on the business.

14.22 As far as Narinder Singh Kohli (petitioner no. 2) is concerned E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 57/74 it is stated that he has been carrying on small business. I have gone through the acknowledgments of the income tax returns of Narinder Singh Kohli i.e. Ex. RW3/1 to RW3/7 along with the profit and loss account. Indeed from the income tax returns filed for the Assessment Year 200910 to 201516 it is clear that he generated good income as is reflected therein i.e. Rs.,4,10,114/, 6,51,224/, 8,37,786/, 9,92,191/, 17,11,873/, 6,15,965/ and 4,82,937/ respectively. However merely because he had been generating the said income does not imply that his need is not a bonafide one. It is to be remembered, as discussed above, that during this particular period part of shop no. 8 was let out to M/s Saraswati Bangles i.e. from 2009 to 2014 and he was generating the rental income as per his share/ lease deed. Property has since been got vacated from M/s Saraswati Bangles and there is no rental income from that source. The need expressed by him is to start his independent business for which need the income generated by him rental (from B54) or otherwise or his financial status that is to say even if he is financially well off cannot prove to be an embargo. Furthermore in the petition it has been categorically mentioned that Narinder Singh Kohli i.e. petitioner no. 2 is carrying on a business in the name and style of Kohli's Munchin from the green and yellow area as shown in site plan Ex.PW1/1 however that is only a makeshift arrangement till the shop is divided after the tenanted portions are vacated. Obviously once he has his E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 58/74 separate/divided/earmarked shop he can expand the business and provide for the sitting arrangements for his customers as he will get some extra space. Petitioner no. 2 can also always expand his business and augment his income.

14.23 Both the petitioners have every right to prosper and earn more for themselves and their family and choose the place and nature of business. Rental income can only provide them with financial security and stability to a certain extent. To keep them occupied, to earn with their own hands, to have a standing in the society as businessmen or entrepreneurs, to establish themselves they have a right to start a business of their choice and liking. Reliance may be placed upon the law laid down in Sait Nagjee (supra), Sarla Ahuja (supra), Manoj Kumar and anr. Vs. Sandeep Kumar and ors. (P&H) HC CR No. 1055 of 2006 dated 24.01.2008, Rishi Kumar Govil Vs. Maqsoodan, 2007 (1) RCR (Rent) 405, Mohd. Ayub and anr Vs. Mukesh Chand (2012) 2 SCC 155 , M.L. Prabhakar Vs. Rajiv Singhal (2001) 2 SCC 355 and Prativa Devi Vs. T.V. Krishnan 1996 SCC 353. 14.24 It is not the requirement of law that before they seek eviction of the tenanted premises to start their business they have to starve themselves E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 59/74 or curtail all sources of income or become absolutely unemployed or jobless. In Ramkubai & Ors V Hajarimal Dhokalchand Chandak & ors. JT 1999 (5) SC 630 it was observed that :

" B was unemployed on the date of filing of the suit but in the meanwhile started some business and in that context , their lordships held that he cannot be expected to idle away the time by remaining unemployed till the case was finally decided. It was held that if the eldest son was carrying on business along with his mother, that does not mean that his need has not been established for starting his own business."

14.25 In Raghunath G. Panhale (Dead) by LRs (Supra) it was further held as under:

"a landlord need not lose his existing job , nor resigned it, nor reached a level of starvation to contemplate that he must get possession of his premises for establishing a business. . One cannot imagine that a landlord who is in service should first resign his job and wait for the unknown and uncertain result of a long drawn litigation. If he resigned his job, he might indeed end up in utter poverty. Joblessness is not a condition precedent for seeking to get back ones premises. For that matter assuming the landlord was in a job and had not resigned it or assuming that pending the longdrawn litigation he started some other temporary water business to sustain himself, that would not be an indication that his need for establishing a grocery shop was not a bonafide or a reasonable requirement or that it was motivated or was a mere design to evict the tenant. It is not necessary for the landlord to adduce evidence that he had money in deposit in a bank nor produce proof of funds to prove his readiness and willingness as in a suit for specific performance of an agreement of sale of immovable property".

14.26 In Raj Kumar Khetan Vs. Bibi Zubaida Khatun, (1997) 11 SCC 411, it was held that it was not necessary for the landlord to state in the pleadings, the nature of the business he proposed to start. E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 60/74 14.27 In the judgment tiled as Ram Babu Aggarwarl v. Jay Kishan Das reported as 2009(4) R.C.R.(Civil) 748 (SC) , the Hon'ble Supreme Court observed:

".......6. However, as regards the question of bonafide need, we find that the main ground for rejecting the landlord's petition for eviction was that in the petition the landlord had alleged that he required the premises for his son Giriraj who wanted to do footwear business in the premises in question. The High Court has held that since Giriraj has no experience in the footwear business and was only helping his father in the cloth business, hence there was no bonafide need. We are of the opinion that a person can start a new business even if he has no experience in the new business. That does not mean that his claim for starting the new business must be rejected on the ground that it is a false claim. Many people start new businesses even if they do not have experience in the new business, and sometimes they are successful in the new business also...."

14.28 Hence there is no merits in any of the contention of Ld. Counsel for the respondent and the need as expressed by the petitioners is indeed bonafide.

Alternative accommodation

15. As far as the availability of other/alternate reasonable suitable accommodation is concerned the petitioners categorically stated that they have no other reasonable suitable accommodation except for the tenanted premises for carrying on their independent businesses. Ld. Counsel for the E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 61/74 respondent attempted to counter their stand by arguing that the space already available is sufficient for running two independent businesses. Furthermore it was argued that there are three other properties available with the petitioners i.e. property no. B54 Lajpat NagarII New Delhi, A94 Lajpat NagarI New Delhi and EII/36 Lajpat Nagar New Delhi to carry on their businesses. It was argued that since these alternate accommodations are available to the petitioners the petition ought to be dismissed on this ground alone. Reliance was placed upon the law laid down in Kempaiah Vs. Lingaih 2001 (8) SCC 718, Kishan Chand Vs. Jagdish Pershed JT 2001 (10) SC 426 and Pawan Chand Vs. Yashpal 113 (2004) DLT 421. 15.1 However I do not agree with the arguments of the Ld. Counsel for respondent. As far as the contentions regarding the space already available is concerned it has been discussed above in detail that the said space is insufficient and not ideal or suitable in comparison to the space/shop the petitioners will have after eviction of the tenanted premises and the division of the shop no. 8 as contemplated by them which will also give them more area.

15.2 As far as other accommodations are concerned i.e. B54 and A94 Lajpat Nagar the petitioners categorically stated that as far as B54 is E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 62/74 concerned same is jointly owned by the petitioners and their wives and it is constructed from ground floor to third floor, is a residential property and is being used for residential purposes and the same is let out to various tenants. It is further submitted that property no. B54 cannot be used for commercial purposes.

15.3 As far as A94 is concerned it has been explained that the said property constructed from basement to third floor is owned by their father and it too is a residential property occupied by the petitioner's father and the petitioners i.e. they are residing there. It has been explained that the father of the petitioners is residing on the ground floor, first floor is occupied by petitioner no. 2, second floor by petitioner no. 1 and the third floor is let out. As far as basement is concerned it is used as a store.

15.4 It was explained that no portion of the above property is suitable or available for commercial purposes. The respondent could not counter the claims of the petitioners or prove that the petitioners were deposing falsely or that indeed there is some portion available in the above two properties which can be used for commercial purposes i.e. for running independent businesses by the petitioners much least that those portions are commercially equally viable and profitable to the petitioners if not more in E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 63/74 comparison with the shop no. 8, Central Market, Lajpat Nagar, New Delhi. 15.5 As far as property no. EII/36 is concerned the petitioners claimed that they have already sold the said property and have no concern with the same. Though Ld. Counsel for the respondent relying upon the testimony of RW4 (In fact RW5) Sh. Ashok Kumar Sharma, UDC, Sub Registrar V argued that the said property or atleast some portions of the property are still available with the petitioners and same can be used for the bonafide needs as expressed by the petitioners however I find no merits in the same. As far as the testimony of RW4 (in fact RW5) is concerned no doubt he proved the sale deed dated 27.11.2001 which is Ex RW4/1 vide which the petitioners had acquired property no. EII/36, Lajpat Nagar however this testimony of RW4 (in fact RW5) does not help the cause of the respondent at all. The fact proved by the said witness was never in dispute. The petitioners have given the details of acquisition/purchase of the said property in their amended replication which was filed after the written statement was filed by the respondent claiming that the petitioners had concealed the said property i.e. they are the owners of the said property in their petition and after this fact came to their knowledge they filed the amended written statement incorporating these said facts in para 18 (a) (xxiv). In the replication while replying to the above para the petitioners E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 64/74 categorically stated that the said property had already been sold to various parties/owners in the year 2003 to 2004. They gave complete details of the entire portions so sold i.e. the name of purchaser, date of sale deed etc. and also filed the copies of sale deeds on record. No doubt no evidence was led by the petitioners to prove the sale transactions as above but firstly it is to be seen that this amended Written Statement (07.10.2015) was filed only after the petitioners had led their evidence, tendered their affidavits, were duly cross examined and the PE was already closed (23.09.2015). Hence there was no occasion for the averments regarding the said property to be there in the affidavits of the petitioners. Secondly, it was not incumbent upon them and not doing so does not prejudice their case in any manner. The onus was upon the respondent to disprove, discredit and contradict the stand of the petitioners and to prove that the petitioners's pleadings were false and incorrect and that the said property had not been sold or that the said property had not been sold completely or that they were still left with certain portions which could fulfill the bonafide need as claimed by the petitioners. The onus was on the respondent to prove that the petitioners were still having certain portion in the said property which could be used for carrying on the independent businesses by the petitioners but the respondent miserably failed to discharge the onus.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 65/74 15.6 In fact the petitioners had offered themselves for cross examination regarding the said property i.e. EII/36 but for reasons best known they were not cross examined. I have gone through proceedings dated 30.10.2015 in this regard. It was argued by Ld. Counsel for the respondent that the reason why they were not cross examined is that there was no averment in the affidavit of the petitioners regarding the said property i.e. its purchase and alleged sale. However let that be the case once the petitioners offered themselves for cross examination nothing stopped the Ld. Counsel for the respondent from cross examining them to rebut their claims. Having not done so at the appropriate stage/time it is not now open to the Ld. Counsel for the respondent to argue that the petitioners could not prove that they had sold the said property in the year 200304. Shelter cannot be taken behind technical and procedural aspects of the trial instead of discrediting the parties on merit when the option is duly available. Moreover as discussed above the onus was on the respondent to prove that the property as above was still available with the petitioners, but the respondent could not even remotely prove that the petitioners indeed have some other suitable/alternate accommodation or commercial property available with which can fulfill their needs/ requirements. 15.7 Furthermore shop no. 8 of which the tenanted premises is a E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 66/74 part is situated in Central Market, Lajpat Nagar. The properties as pointed out by the respondent i.e. B54, A94 and EII/36 are not located either in Central Market Lajpat Nagar or its immediate vicinity. Therefore, these properties can by no bound of imagination be even compared to shop no. 8 and they are far from being alternate reasonable suitable accommodation in comparison with the said shop. The volume of business, footfall, income etc. which shop no.8 can generate cannot be matched by the remaining properties even if they are utilized for commercial purposes/intended businesses by the petitioners irrespective of the fact that the respondent has failed to prove they can be utilized so. Reliance may be placed upon the law laid down in Dhannalal (Supra), Rajesh Jain Vs. Quazi Sammin Ahmad and ors, 2015 (2) Rajdhani Law Reporter 438, Viran Wali Vs. Kuldeep Rai Kochhar 2010 (174) DLT 328 and K.B. Watts Vs. Vipin Kalra 2015 (220) DLT 402.

15.8 The arguments of the Ld. Counsel for the respondent that the petitioners concealed the availability of the said property i.e. EII/36 and therefore are not entitled to the relief are meritless. The allegations that some portions remained with the petitioners remained bald and could not be substantiated as discussed above. The claim of the petitioners that they have E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 67/74 sold the said property could not be negated. Having already sold the property way back in the year 200304 i.e. around 10 years prior to filing of present petition the petitioners were not obligated to give its detail in the petition.

15.9 In fact as the above properties were not available and were not reasonably suitable alternate accommodation available to the petitioners it was not incumbent to give the details of those properties. Reliance may be placed upon Ram Narain Arora Vs. Asha Rani 1999 (1) SCC 141. Further reliance may be placed upon the law laid down in Surinder Singh Vs. Jasbir Singh 172 (2010) DLT 611 wherein it has been held by Hon. High Court of Delhi as under:

"14. With regard to the availability of basement of first floor, it is contended that these portion are not suitable for business, as tenanted shop is situated on the main road and that too on the ground floor. No customer would like to go to the basement or first floor. Moreover, petitioner has not filed any counter site plan.

25..... The mere fact that, respondent did not disclose the accommodation of basement and first floor available with him in the eviction petition, would not prove fatal to the present case, since the same cannot be said to be an alternative suitable accommodation for the purpose of business."

31 (b) As far as the objection to the effect that the petitioner can enhance his business by using the basement or first floor of the property no. 228 is concerned, the premises or the space available at the basement or at the first floor, can in no way substitute the commercial space available at the ground floor of a given property. E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 68/74 15.10 Reliance in this regard may also placed upon the law laid down in M.L. Prabhakar Vs. Rajiv Singhal 2001 (2) SCC 355, the wherein Hon'ble Supreme court held as under: "5. It has been urged that there was suppression on the part of the landlord inasmuch as he did not disclose the premises which were available at No. 16/57, Gali no. 1, Joshi Road as well as premises which are available at Basant Road, Pahar Ganj. On the other hand, on behalf of the respondent, Dr. Singhvi has submitted that the only requirement is to disclose such accommodation as is suitable for residence of the landlord. Dr. Singhvi submitted that if there is no other residential accommodation which is suitable then there is no duty to disclose. Dr. Singhvi relied upon the authority in the case of Ram Narain Arora v. Asha Rani (1999) (1) SCC 141)".

15.11 It will also be pertinent to highlight the statement made by the respondent during his cross examination regarding the above properties which further proves that the allegations regarding those properties being available to the petitioners or they being reasonable suitable accommodation has no basis. The relevant portion is reproduced hereunder: "I am not aware therefore cannot answer the suggestion that both the petitioners and their father are residing on separate floors in property no. A94, Lajpat NagarI, New Delhi and are having their separate kitchen...........The property bearing no. EII/36, Lajpat Nagar New Delhi was purchased by the petitioners and sold in the year 2006 and not in 2003.......

It is correct that petitioners are not the owners of any property bearing no.A94, Lajpat NagarIV, New Delhi. It is correct that the property no. A94 Lajpat Nagar is in Lajpat NagarI, in which petitioners and their father are residing. It is correct that A94 Lajpat Nagar Part I is a residential property and E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 69/74 is being used for residential purposes only. It is wrong to suggest that property no. B54 Lajpat Nagar PartII is also residential. Vol. There are two shops on the ground floor but they have not fixed any shutter therein. I have taken the photographs of property no. B54, Lajpat Nagar, New Delhi showing the shops but I have not placed on record any such shops on record.......

I am not aware therefore, cannot answer the suggestion that no commercial activity are carried out from B54, Lajpat Nagar II, New Delhi......

I had never been to property no. B54, Lajpat NagarII, New Delhi and therefore, cannot answer this question that no commercial space is available in the said property."

15.12 In fact it will be pertinent to highlight the statement made by the respondent regarding his affidavit in evidence i.e. RW1/A and which creates grave doubt upon the demeanor of the witness as well as the averments made in the affidavit challenging the case of the petitioners. The relevant portion read as under: "I have filed by affidavit Ex. RW1/A before this court which was prepared by my advocate. I am not aware what is written in the said affidavit." 15.13 This is an absolutely irresponsible statement and when considered in light of the above answers given in the cross examination not only proves the falsity of the claims made in the affidavit but renders the affidavit liable to be thrown off the records. In fact same is the position with RW2. RW2 Mukesh Sharma who is the nephew of the respondent during his cross examination made the following statement:

"I had instructed my counsel but I am not aware of the contents of my E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 70/74 affidavit."

15.14 Even otherwise as far as the above alleged alternate accommodations are concerned, which the respondent failed to prove, the law is well settled that tenant cannot dictate terms to the landlord as to how and which property the landlord should occupy and use for the intended purpose. Reliance may be placed upon the law laid down in Anil Bajaj and anr Vs. Vinod Ahuja 2014 (6) Scale 572, Sudesh Kumar Soni and anr Vs. Prabhu Khanna and anr. 153 (2008) DLT 652 and Sait Nagjee Purushotham & Co. Ltd. Vs. Vimlabai Prabhulal & Ors, (2005) 8 SCC

252. Furthermore while deciding the question of bonafides of requirement of the landlord, it is quite unnecessary to make an endeavour as to how else the landlord could have adjusted.

15.15 In Shiv Sarup Gupta (Supra) it has been held that an alternative accommodation, to entail denial of the claim of the landlord, must be reasonably suitable, obviously in comparison with the suit accommodation where from the landlord is seeking eviction. 15.16 In Sait Nagjee Purushotham and Co. Ltd. (Supra) it was observed:

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 71/74 "It is not the tenant who can dictate the terms to the landlord and advise him what he should do and what he should not. It is always the privilege of the landlord to choose the nature of the business and the place of business."

15.17 In M. L. Prabhakar (Supra) it was held the Court would permit the landlord to satisfy the proven need by choosing the accommodation which the landlord feels would be most suited for his 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.

15.18 In Prativa Devi Vs. T. V. Krishanan 1996 SCC 353 it was held that landlord is the best judge of his residential requirement. He has complete freedom in the matter. It is no concern of the Courts to dictate to the landlord how and in what manner he should live or to prescribe for him a residential stand of their own. It was held in Gulab Chand Pukhraj Vs. R.B. Jinender Raj VII (2009) SLT 91 that it is the landlord's prerogative as to from which location or premises he prefers to run business, the preference is solely his.

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 72/74 HARDSHIP

16. It was also argued by Ld. counsel for respondent that since tenanted premises is the only means of earning and livelihood of respondent and his family, a lot of hardship shall be caused to him, if the eviction is allowed. However the law is well settled that the concept of comparative hardship has no application so far as ground of eviction U/s. 14 (1) (e) of the Act is concerned. The tenanted premises was let out to the respondent way back in the year 1978 i.e. almost 38 years ago. Nothing has been disclosed/ stated by respondent as to whether the respondent has acquired or any attempt was made by him to get alternate accommodation or that he failed to get such accommodation. I am not inclined to believe that respondent has no other property for carrying on the business or that he did not make any effort all this while to find the alternate accommodation. 16.1 In Subhash Jain Vs Ravi Sehgal decided on 04.02.2014, Hon'ble High Court of Delhi has observed :

"we are mindful of the fact that whenever the tenant is asked to move out of the premises some hardship is inherent. But in our opinion, in the facts of this case, that circumstance cannot be the sole determinative factum . That hardship can be mitigated by granting him longer period to move out of the premises in his occupation so that in the meantime he can make alternative arrangement"

E 17/14 (New 5102/16) Savinder Singh Kohli & anr Vs. Bal Kishan 73/74 16.2 Reliance may also be placed upon the law laid down in Om Parkash Arora Vs. Ratan Mala Jain 2013 (1) AD (Delhi) 253 and Mohd. Ayub Vs. Mukesh Chand (2012) 1 AD (SC) 473.

16.3 Hence no question of any hardship whatsoever being caused to the respondent arises or can be a consideration.

17. In view of above discussion the petitioners are entitled to recover the possession of the tenanted premises i.e. one shop bearing private no. 8A, forming part of Shop no. 8, Central Market, Lajpat NagarII, New Delhi, measuring around 6 x 3 ft. more specifically shown in red in the site plan Ex. PW1/1 filed along with the petition. The eviction petition is allowed accordingly. The petitioners, however shall not be entitled to obtain possession thereof before the expiration of a period of six months from the date of this order.

18. File be consigned to record room.

Announced in the open court                                     (Gaurav Rao)
on 5th September 2016                                       SCJCumRC(SouthEast)
                                                        Distt.Courts, Saket, New Delhi.

E 17/14 (New 5102/16)               Savinder Singh Kohli & anr Vs. Bal Kishan            74/74

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Delhi District Court

Sh. Savinder Singh Kohli vs Sh. Bal Kishan on 5 September, 2016