Delhi District Court
Smt. Chander Vati Rathi vs Sh. Mahavir Singh on 9 September, 2011
IN THE COURT OF SH. RAVINDER SINGH, ADDITIONAL
RENT CONTROLLER (EAST), KKD COURT, DELHI.
E321/06
(Case I.D. No.02402C0004132001)
Smt. Chander Vati Rathi
W/o late Sh. Inderjeet Singh Rathi,
R/o D199A, Gali No.8, Laxmi Nagar,
Delhi110092. ...Petitioner
Versus
1. Sh. Mahavir Singh
S/o Sh. Jai Pal Singh,
R/o S528A, School Block,
Shakarpur, Delhi110092.
2. Sh. Yudhvir Singh @ Fauji
S/o Sh. Mahavir Singh,
R/o S528A, School Block,
Shakarpur, Delhi110092. ...Respondents
Date of filing of petition : 07/02/2001
Date of argument : 03/09/2011
Date of Judgment : 09/09/2011
E321/06 Page 1 of 29
Petition u/s 14 (1) (a) DRC Act
JUDGMENT:
1. Before proceed to decide the case, it is deemed fit and proper to dispose off the application of LR of respondent No.1 U/s 151 CPC dated 07/09/2007.
2. In his application, LR of respondent No.1 alleged that petitioner has filed a civil suit for recovery of possession, damages and permanent injunction against him in respect of the premises in question in the court of Ld. ADJ, Delhi and in that suit petitioner alleged that he is illegal and unauthorized occupant and therefore there is no relationship of landlord and tenant between the parties and therefore this petition be dismissed.
3. Petitioner filed the reply to the said application and stated that applicant/respondent is the legal heir of the deceased respondent no.1 and therefore he step into the shoe after the death of original tenant. Petitioner further stated that applicant/respondent can only defend the petition on behalf of deceased respondent no.1 and he has no right of its own. Petitioner further stated that filing of the said civil suit on different cause of action would not oust the jurisdiction of this court.
4. It is admitted fact that petitioner filed the present petition against Mahavir Singh and Yudhvir Singh being respondent no.1. and 2. Respondent E321/06 Page 2 of 29 no.1 has expired on 20/04/02 so his legal heir is taken on record vide order dt. 30/07/07 whereas respondent no.2 expired on 23/04/06 and as there is no legal heirs of respondent no.2 hence his name was deleted from the array of parties vide order dt.25/04/06.
5. Admittedly the present petition filed against deceased respondents on 07/02/01 whereas the suit for recovery of possession was filed against the LR of respondent no.1 in the year 2007. During course of arguments, ld. counsel for the petitioner submitted that LR of the respondent no.1 is not financially dependent upon respondent no.1 so his tenancy was terminated by way of notice as he is entitled for protection for one year after termination of tenancy. Section 2(l) of DRC Act define tenant. The explanation II of Section 2(l) of DRC Act, give the protection to legal heir of tenant who was not financially dependent upon deceased tenant on date of his death for a limited period of one year. It is pertinent that on the expiry of that period or on his death, whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall became extinguished and therefore petitioner filed the suit for recovery and possession against LR of respondent no.1/applicant claiming that applicant was not financially dependent upon the deceased respondent no.1. In view of above discussion, the application of LR E321/06 Page 3 of 29 of respondent No.1 U/s 151 CPC is dismissed.
6. Smt. Chander Vati Rathi (hereinafter called petitioner) filed this eviction petition u/s 14 (1) (a) DRC Act against Sh. Mahavir Singh and Sh. Yudhvir Singh @ Fauji (hereinafter called respondent no.1 & 2 respectively) who are tenant in respect of two bedrooms, one drawingcumdining room, one kitchen and one toilet forming part of property bearing no.S528A, School Block, Shakarpur, Delhi110092 as shown in red colour in the siteplan attached (hereinafter called the tenanted premises).
7. In her petition, petitioner alleged that respondent no.1 & 2 were her joint tenant on a monthly rent of Rs.3200/exclusive electricity and water charges. Petitioner further alleged that the tenancy was oral and it was commenced on 20/6/94. Petitioner further alleged that she issued rent receipts to respondent no.1 who signed the counterfoils of same. Petitioner further alleged that she is the owner/landlady of the property comprises tenanted premises as she had purchased the property vide GPA on 24/12/86 from Sh. Ram Saran, r/o S528, School Block, Shakarpur, Delhi. Petitioner further alleged that respondents paid the rent regularly upto November 1996 thereafter they stopped making payment of rent. Petitioner further alleged that she orally requested to the E321/06 Page 4 of 29 respondents for payment of rent but despite repeated requests, respondents did not pay the rent since 20/11/96 thereafter she sent registered notice of demand dt.30/11/2000 through registered cover as well as UPC. Petitioner further alleged that respondents refused to receive the notice from postman which is clear from the report of postman hence they were duly served and despite service of notice, respondents have neither paid nor tendered the legally recoverable rent within the prescribed period of two months hence she filed the present petition.
8. Summons for settlement of issues were duly served upon both the respondents and they filed their common written statement wherein they alleged that respondent no.1 is the owner of the property by way of adverse possession so there is no relationship of landlord and tenant between the petitioner and respondents and as such the present petition is not maintainable. Respondents further alleged that petitioner is a guilty of making and preparing false and forged documentary evidence just to give a false support to her allegations with object of taking illegal and invalid possession. Respondents further alleged that the petition is barred u/s 14 (1) (h) as well as u/s 50 of DRC Act as the court of Ld. ARC has no jurisdiction to decide the title of property in question. Respondents further alleged that the siteplan is also not E321/06 Page 5 of 29 according to the site. Respondents further alleged that the documents relied by the petitioner are not admissible u/s 17 of Registration Act. On merit, respondents alleged that respondent no.1 occupied the property in question about 35 years ago when it was a peace of land initially and he constructed a 'Jhuggi' on the suit land and thereafter he made entire construction which is under his uninterrupted possession so he became the absolute owner of suit property by way of adverse possession. Respondents further alleged that they did not remain the tenant in the suit property under the petitioner at any point of time, so the question of paying the alleged rent @ Rs.3200/p.m. does not arise at all. Respondents further alleged that the rent receipts allegedly issued to respondent no.1 for the joint tenancy are false. They also denied the signatures of respondent no.1 on counterfoil of rent receipts as the same are false, forged and fabricated. Respondents further stated that respondent no.1 has never signed any counterfoil of any rent receipt at any point of time as per their knowledge. Respondents further alleged that petitioner has not sent any legal notice of demand to them and therefore they have not refused to accept the same and if there is any report of refusal given by the postman then same is false and manipulated by the petitioner in collusion with the postman and accordingly both respondents prayed for dismissal of the petition. E321/06 Page 6 of 29
9. Petitioner filed replication wherein she reaffirmed the facts as stated in the petition and also refuted the contents of WS of respondents.
10. In support of her case, petitioner herself examined as PW1, Sh. Ram Saran Sharma as PW2 and Sh. Gajraj Singh as PW3.
11. PW1 testified that she is the owner of the property bearing no.S528 A, School Block, Shakarpur, Delhi measuring about 125 Sq.yds. as she has purchased the same from Sh. Ram Saran Sharma for a consideration of Rs. 85,000/ vide agreement to sell and GPA dt.24/12/86. The agreement to sell is Ex.PW1/1, GPA is Ex.PW1/2 and receipt of payment is Ex.PW1/3. PW1 further deposed that she let out the tenanted premises as shown in the siteplan Ex.PW1/4 to Mahavir Singh and his son Yudhvir Singh on 20/6/94 on a monthly rent of Rs.3200/ exclusive of electricity and water charges. PW1 further testified that respondent paid rent for a period from 20/6/94 to 19/7/94 and 20/7/94 to 19/8/94 so she issued rent receipts to Mahavir Singh and the counterfoil of same are signed by Mahavir Singh is Ex.PW1/5 and Ex.PW1/6 respectively. PW1 further deposed that respondents were paying the rent upto 10/11/96 thereafter they failed to pay the rent despite her requests so she sent legal demand notice dt.30/11/2000 Ex.PW1/14 through registered cover as well as UPC to both the respondents. The postal receipts of sending the notice to E321/06 Page 7 of 29 Mahavir Singh and his son Yudhvir Singh are Ex.PW1/7 & Ex.PW1/8 respectively. The receipts of UPC of both respondents are Ex.PW1/9. PW1 further deposed that the registered cover containing notice sent to Mahavir Singh and his son Yudhvir Singh Ex.PW1/10 & Ex.PW1/11 had received back with report of postman 'refused' dt.02/12/2000 and same are Ex.PW1/12 and Ex.PW1/13 respectively. PW1 further deposed that she applied for installation of electricity meter on 20/1/87, receipt of same is Ex.PW1/15 and electricity meter was installed in her name in the tenanted premises. The electricity bill of tenanted premises is Ex.PW1/16 to Ex.PW1/22. PW1 further deposed that respondents were consuming the electricity but did not pay the electricity charges. PW1 further deposed that she got sanctioned the water connection in the tenanted premises vide receipt Ex.PW1/23. PW1 further deposed that she has filed a complaint for nonpayment of rent by the respondents and both respondents were called for interrogation by inspector vigilance vide Ex.PW1/24. PW1 further deposed that she also filed reminder of his complaint Ex.PW1/25. PW1 further deposed that despite service of legal demand notice, respondents have not paid rent hence she filed this petition.
In her crossexamination, she deposed that construction over the suit property is since she entered into the suit property. PW1 further deposed E321/06 Page 8 of 29 that she had gone through all the English documents through her children. PW1 further deposed that Ex.PW1/1 to Ex.PW1/3 were signed by all the signatories in her presence in Tis Hazari Court. PW1 denied the suggestion to the effect that documents are forged and fabricated and does not bear the signatures of seller. PW1 also denied the fact that Mahavir Singh/respondent no.1 is residing in the suit property for the last 35 years. PW1 further denied the suggestion to the effect that Mahavir Singh/respondent no.1 does not know the Urdu language. PW1 deposed that respondent no.1 used to sign in Urdu. PW1 further deposed that at the time of creation of tenancy with Mahavir Singh, all her 4 sons, Gajraj Singh i.e. her neighbour and son of Mahavir Singh were also present there. PW1 denied the suggestion to the effect that electricity and water bill Ex.PW1/13 to Ex.PW1/23 do not pertains to the property where Mahavir Singh and his family members resides. PW1 denied the suggestion to the effect that siteplan Ex.PW1/4 is not correct as per the site. PW1 denied the suggestion to the effect that no legal notice Ex.PW1/7 was given to Mahavir Singh. PW1 also denied the suggestion to the effect that she had manipulated and got prepared false postal and UPC receipts Ex.PW1/7 to Ex.PW1/9. PW1 further deposed that she met Mahavir Singh when he stopped paying rent to her from November 1996 and thereafter she never met with him E321/06 Page 9 of 29 as he used to fight and threatened her. PW1 denied the suggestion to the effect that she made false complaints Ex.PW1/24. PW1 further deposed that original documents pertaining to the ownership of Ram Saran Sharma are not under her possession as previous owner Ram Saran Sharma had not handed over the same to her however she had seen the ownership document in the name of Ram Saran Sharma. PW1 further denied the suggestion to the effect that Ram Saran Sharma was not the owner of the property. PW1 also denied the suggestion to the effect that Ex.PW1/5 and Ex.PW1/6 does not bear the signatures of deceased Mahavir Singh in Urdu. She further deposed that she got installation electricity and water connection prior to inception of tenancy. PW1 denied the suggestion to the effect that there is no water or electricity connection in the suit property.
12. PW2 Ram Saran Sharma testified that he was the owner of the property bearing no.S528, School Block measuring 200 Sq.yds. of Khasra no.162 of Shakarpur, Illaqa Shahdara, Delhi. PW2 also testified that one Toti, s/o Sh. Sukh Ram was owner of Khasra no.162, Vill. Shakarpur Khas, Delhi. He sold a piece of land measuring 200 Sq.yds. to his wife Mithlesh Kumari for a consideration of Rs.1,000/ on 4/11/70 vide sale deed Ex.PW2/1. PW2 further deposed that his wife raised construction over the said plot and they started E321/06 Page 10 of 29 residing therein. PW2 further deposed that his wife Mithlesh expired on 28/5/75 and thereafter the property devolved upon him and his son Sanjeev Kumar by operation of law so on 24/12/86, he sold the constructed portion of an area of 125 Sq.yds. for a consideration of Rs.85,000/ to the petitioner vide agreement to sell & GPA as his son Sanjeev Kumar has no objection in sell of property. The agreement to sell is Ex.PW1/1, GPA is Ex.PW1/2 and receipt of payment is Ex.PW1/3. PW2 also deposed that deceased Mahavir Singh was residing in the property adjacent to the house prior to him but he cannot say the exact period since what time he was residing there.
In crossexamination, PW2 deposed that he used to reside in house no.528, School Block, near Gas Godown, Shakarpur. PW2 further deposed that there might be more than one house bearing the same number in the said locality. PW2 further deposed that he has signed affidavit that he had sold the property. PW2 further deposed that his affidavit in evidence was not prepared on his instruction. He further deposed that he cannot tell the location of house of Mahavir Singh. He admitted that Ex.PW2/1 is a photocopy of sale deed and he has not its original. However he denied the suggestion to the effect that Ex.PW2/1 does not exist in original. PW2 further deposed that Ex.PW1/1 to Ex.PW1/3 bears his signatures at point A, B and C respectively. PW2 E321/06 Page 11 of 29 further deposed that he does not remember for what purpose he had taken the amount of Rs.85,000/. He admitted that the house of Mahavir Singh deceased respondent no.1 is adjacent to his house situated at School Block, Shakarpur. PW2 denied the suggestion to the effect that Ex.PW2/1 was never executed by Toti in favour of Mithlesh Kumari. PW2 further deposed that he cannot identified the siteplan Ex.PW1/4 as same does not bears his signature.
13. PW3 Gajraj Singh testified that he knew petitioner for the last 2022 years and on 20/6/94, he went to the house of petitioner where Mahavir Singh alongwith one person was sitting. They were talking with petitioner for taking some house on rent. On his inquiry, petitioner told him that Mahavir Singh wanted to take her house bearing no.S528 A, School Block, Shakarpur on rent. PW3 further deposed that in his presence the rate of rent of the premises agreed to be paid by Mahavir Singh was Rs.3200/ exclusive of electricity and water charges. The negotiations took place in his presence. PW3 further deposed that police recorded his statement in this connection on 20/9/2000.
During his crossexamination, PW3 deposed that he knows the English language and also knows the averments made in his affidavit Ex.PW3/A. PW3 further deposed that he was first time introduced to Mahavir Singh on 20/6/94. PW3 admitted that no rent was paid in his presence. PW3 E321/06 Page 12 of 29 further deposed that he has seen the property but he cannot say how many rooms and floors are built up in the same. PW3 denied the suggestion to the effect that he had never visited to police station regarding any dispute between the petitioner and respondent no.1 in respect of property in question.
14. Both respondents have expired during examination of witnesses . The LRs of respondent no.1 were taken on record vide order dt.30/7/07 whereas there is no legal heirs of respondent no.2 hence his name was deleted from the array of parties vide order dt. 25/4/06.
15. The LR of respondent no.1 examined three witnesses in support of case of respondents. Praveen Kumar, the LR of respondent no.1 examined himself as RW1, Sudama Mehto, from Transport Office as RW2 and Prabhu Nath Singh Patwari as PW3. The evidence affidavit of respondent no.2 and one Vijay Pal Singh also filed on record on 23/11/05 but as respondent no.2 has expired hence his affidavit was not tendered in evidence. Whereas the evidence affidavit of Vijay Pal Singh was neither signed by witness nor attested hence same was taken off from the record vide order dt.17/2/06.
16. RW1 Praveen Kumar the LR of respondent No.1 testified that he is one of the legal heir of respondent no.1 so he is well conversant with the fact of the case. RW1 deposed that respondent no.1 was the owner of the property in E321/06 Page 13 of 29 question by way of adverse possession as the property in question was in possession of respondent no.1 for the last more than 35 years and respondent no.1 is living alongwith his family including him. The copy of Khasra Girdhawari for period 19771978 and 19781979 showing the possession of deceased Mahavir Singh over the property are marked Ex.RW1/1 and Ex.RW1/2 which are in Urdu language hence he got the translation of same in Hindi which are marked as Mark RW1/3 and RW1/4, his ration card is Ex.RW1/5. Copy of traffic challan for the year 20002001 is Ex.RW1/6. RW1 further deposed that there is no relationship of landlord and tenant between the parties to the petition as petitioner has filed the petition which is totally based on entire false and wrong facts. RW1 further deposed that the property in question had already been acquired by the Govt. of India vide award no.7/1969 in the year 1969 and thereafter the property in question does not belongs to anyone except the respondent no.1. RW1 further deposed that the actual bhoomidar of the land of Khasra no.162 was Trilok Chand, s/o Harsahai and not Toti, s/o Sukhram. The copy of khatoni issued by Revenue Department for the year 198586 in respect of Khasra no.162 is Ex.RW1/8. RW1 further deposed that property in question is situated in School Block, Shakarpur Khas situated at a distance of 1 Km. from the property in question. RW1 further E321/06 Page 14 of 29 deposed that there is no electricity and water connection in the suit property. RW1 further deposed that petitioner filed the forged rent receipts allegedly bearing the signatures of Mahavir Singh/respondent no.1 in Urdu whereas Mahavir Singh/respondent no.1 did not know Urdu and therefore the question of any signatures in Urdu on rent receipts does not arise particularly when respondents were never remained as tenant in the property so there is no landlordship of petitioner. RW1 further deposed that he purchased a motor cycle bearing no.DL 1SF 5883 on 07/9/93 and RC of same is Ex.RW1/7 in his name on the same address i.e. the property in question. RW1 further deposed that there are many other properties of same number in the area. The copy of bill of some of properties are Ex.RW1/9 & Ex.RW1/10.
In crossexamination, RW1 testified that he and his family members were in possession of the property for the last 40 years. RW1 further deposed that his father was carrying transport business. RW1 further deposed that he has no copy of application applied for copy of Khasra Gidhawari from the Revenue Department. RW1 further deposed that his father used to sign in Hindi and his father does not know Urdu language. RW1 further deposed that Ex.PW1/5 and Ex.PW1/6 do not bear the signatures of his father. RW1 further deposed that telephone installed at his residence was during the period from E321/06 Page 15 of 29 19911992. RW1 further deposed that he did not remember the exact date of installation. RW1 also testified that his father has no bank account. RW1 denied the suggestion to the effect that petitioner made a complaint to SHO, Shakarpur for nonpayment of rent by his father and the police finally recorded the statement of his father in which he stated that he had deposited the rent in court @ Rs.1500/p.m. RW1 further deposed that he cannot say how much expenses were made by his father on the construction of suit property as he was child at that time. RW1 further deposed that he have studied upto 6th standard in government school near Radhu Palace, Shakarpur while residing in the suit property. RW1 denied the suggestion to the effect that his father and his brother took the house on rent on 20/6/94 @ Rs.3200/p.m. RW1 further denied the suggestion to the effect that at the time of creation of tenancy one Gajraj Singh was also present. RW1 further denied the suggestion to the effect that there was an electricity connection in the name of petitioner in the tenanted premises and arrears of electricity charges were due for a sum of Rs. 72,000/. RW1 further deposed that he has purchased the motor cycle in the year 1993 while residing in the suit property from the showroom at Swarna Cinema. RW1 also denied the suggestion to the effect that there is water connection of Jal Board in the suit property in the name of petitioner. RW1 E321/06 Page 16 of 29 further deposed that he does not know whether the property S528 A, School Block, Shakarpur, Delhi was purchased by Smt. Chander Vati Rathi from Ram Saran Sharma. RW1 also denied the suggestion to the effect that his late father and brother Yudhvir Singh were the joint tenants in the suit property. Since 20/6/94 and therefore they are not in adverse possession. RW1 also denied the suggestion to the effect that Ex.RW1/1 to Ex.RW1/4 are forged and fabricated document.
17. RW2 Sudama Mahto from transport office, Mall Road, Delhi produced the summoned record of vehicle bearing no.DL ISF 5883. The certified copy of particulars of vehicle is Ex.RW2/1.
In crossexamination, he admitted that the address given in RC is S528 and not 528 A, School Block, Shakarpur, Delhi.
18. RW3 Prabhunath Singh Patwari testified that he have brought the summoned record in respect of Khata Khatoni no.31/35 of Khasra No.162 situated in Vill. Shakarpur for the year 198586. The owner of Khasra No.162 is Trilok Chand, s/o Har Sahai. RW3 further deposed that it is remarked in the record that award bearing no.7/1969 has been passed in respect of Khasra no. 162 in the year 1969. RW3 further deposed that Ex.RW1/8 is issued from his office and same is correct as per record.
E321/06 Page 17 of 29
During his crossexamination, RW3 admitted that he has not brought the record for the year 1977 1978 and 19781979 as same has not been asked to bring in court. RW3 admitted that the name of Mahavir Singh/respondent no.1 has not mentioned in the Khatoni. RW3 further deposed that one Form P5 is to be filled by Patwari on the basis of possession over the land but after 1985 in terms of some order of Hon'ble High Court, this form is not filling up and therefore the name of Mahavir Singh, s/o Jai Pal Singh is not mentioned in Khasra Girdhawari of 1995. The copy of Khasra Girdhawari for the year 199596 is Ex.RW3/XP1.
19. I have heard the arguments of ld. counsel for the parties and also gone through the material on record besides the written arguments of Parties.
Relief u/s 14 (1) (a) DRC Act
20. To prove her case u/s 14 (1) (a) DRC Act, the petitioner is required to be proved that :
(i)relationship of landlord and tenant;
(ii)service of notice of demand;
(iii)existence of arrears of rent legally recoverable on the date of service of demand notice;
(iv)failure of the tenant to pay/tender the entire legally recoverable arrears of rent within stipulated period E321/06 Page 18 of 29
(v) of two months from date of service of demand notice.
21. Ld. counsel for the petitioner argued that petitioner has purchased the premises S528A on 24/12/86 vide agreement to sell GPA from Ram Saran Sharma and she let out the front portion of his premises to respondent no.1 & 2 jointly @ Rs.3200/p.m. excluding electricity and water charges. He further argued that petitioner issued rent receipts to respondents, the counterfoils of same are Ex.PW1/5 & Ex.PW1/6 and accordingly there was relationship of landlord and tenant between petitioner and deceased respondents.
22. Ld. counsel for LR of respondent no.1 argued that there was no relationship of landlord and tenant between petitioner and deceased respondents as petitioner is not the owner of the premises. He further argued that deceased respondent no.1 was the owner of the property by way of adverse possession as he was in occupation of property for the last 35 years.
23. PW1 claimed that she purchased the constructed property from Ram Saran Sharma/PW2 on 24/12/86 vide agreement to sell GPA Ex.PW1/1, GPA Ex.PW1/2 and original receipt of payment of Rs.85,000/ Ex.PW1/3. PW2 admitted his signatures on Ex.PW1/1, Ex.PW1/2 & Ex.PW1/3. He also admitted that he received Rs.85,000/ from PW1. PW2 also deposed that his E321/06 Page 19 of 29 wife Mithlesh was the owner of the property vide sale deed Ex.PW2/1 and she raised constructions during her life time on the said plot and after her death, the property dwell upon him and his son Sanjeev Kumar and he sold the property to petitioner after receiving the consideration of Rs.85,000/ as his son has no objection in the sale of property to the petitioner. PW2 was not cross examined to effect that his son Sanjeev has no objection in the sale of property to the petitioner.Further PW2 also denied the suggestion to the effect that his wife did not raise any construction in the property. Admittedly RW1 has not led any evidence to show when the construction in the property was raised by the respondents. Further it is also pertinent that Respondents have also not disclosed in their written statement when respondent No. 1 raised the construction in place of Juggi or how much amount they spent over the construction of property under these circumstance it is clear that respondents had not raised any construction in the property.
24. Admittedly, PW2 deposed that he does not have any ownership title at any point of time in respect of property bearing no. S528 A School Block, Shakarpur, Delhi for which documents Ex.PW1/1 and Ex.PW1/2 was executed. It is not disputed that the title of the property was in the name of wife of PW2 vide sale deed Ex.PW2/1. PW2 got the title of the property by E321/06 Page 20 of 29 way of inheritance after death of his wife Mithlesh alongwith his son Sanjeev and thereafter he sold the property to Petitioner. PW2 further denied the suggestion that Mithlesh was not his wife or she is alive. Admittedly RW1 has not produced any evidence which suggests that Mithlesh was not the wife of PW2 and she is still alive. It is pertinent that the sale deed Ex.PW2/1 reveals that Mithlesh is wife of PW2/Ram Saran. In view of these discussions, it is clear that tenanted property was sold to petitioner by Ram Saran/PW2 vide Ex.PW1/1, Ex.PW1/2 & Ex.PW1/3.
25. Ld. counsel for LR of respondent no.1 further argued that sale deed Ex.PW2/1 reveals that one Toti sold the property in question to Mithlesh whose husband later on sold the same to petitioner. He further argued that sale deed Ex.PW2/1 reveals that it pertains to property of Khasra no.162. He further argued that as per Khasra Girdawari Ex.RW3/XP1, Toti was the owner of Khasra no.262 whereas Khasra No.162 belongs to Trilok Chand hence sale deed is null and void.
26. Admittedly sale deed executed by Toti in favour of Mithlesh Ex.PW2/1 is pertains to property of Khasra no.162. It is not disputed that sale deed Ex.PW2/1 also reveals demarcation of property by chowbandi (bounded as) besides Khasra no.162. So Khasra number and chowbandi are for the E321/06 Page 21 of 29 identification of the property. It is also admitted fact that in sale deed Ex.PW2/1 and in agreement to sell Ex.PW1/1 & GPA Ex.PW1/2 demarcation bounded as shown by the same gali in north and in south. Further neither Toti nor Trilok Chand, the owner of Khasra no.162 ever claimed the ownership of the property. It is settled law that any defect in the title can only be challenged by the actual owner and not by the tenant of the property. In view of this, there is no force in the arguments of ld. counsel for the LR of respondent no.1
27. PW1 categorically deposed that she let out the tenanted premises to respondents on 20/6/94 and she issued rent receipts to respondents, the counterfoils for the month of June and July were signed by the respondent no.1 are Ex.PW1/5 & Ex.PW1/6. Both respondents filed their common written statement wherein they stated that respondent no.1/Mahavir Singh never signed any counterfoil of any rent receipt at any point of time in his entire life till today as per his knowledge. In their entire written statement, respondents were not pleaded that counterfoils of rent receipts do not bear the signatures of respondent no.1 or that the respondent no.1 does not sign or know the Urdu language as Ex.PW1/5 & Ex.PW1/6 bear the signatures of respondent no.1 in Urdu. It is pertinent that neither respondents in their written statement nor legal heirs of respondent no. 1 in his evidence produce or show any E321/06 Page 22 of 29 documentary evidence which suggests that respondent no.1 knows particular language or he did not know the Urdu language. It is also pertinent that the respondent no.1 carrying on the transport business but he had no bank account. It is very strange that in his entire life, respondent no.1 had not kept any document which shows his signatures or writing. Under these circumstances, it is clear that respondents deliberately withheld the best evidence to prove the correct signatures of respondent no.1 hence, it can be said that counterfoils of rent receipts Ex.PW1/5 & Ex.PW1/6 were signed by the deceased respondent no.1. Further it is also clear from Ex.PW1/5 & Ex.PW1/6 that the rate of rent of tenanted premises is Rs.3200/p.m.
28. Ld. counsel for LR of respondent no.1 further argued that deceased respondents were in possession for the last 4045 years and the Khasra Girdawari of the year 197778 and 197879 Ex.RW1/1 and Ex.RW1/3 their translation copy are Ex.RW1/2 and Ex.RW1/4 respectively same show the possession of respondent no.1 in the property. Further The LR of respondent no.1 has, ration card Ex.RW1/5 and RC of motor cycle Ex.RW1/7 showing the address of premises. prior to letting out of the same and therefore respondent no.1 was in adverse possession.
29. Per contra, ld. counsel for the petitioner argued that respondents have E321/06 Page 23 of 29 failed to prove Khasra Girdawari for the year 19771978 and 19781979 Ex.RW1/1 and RW1/3 as originals have not been produced and even witness from the Revenue Department i.e. RW2 also not produced the brought original of same. He further argued that motor cycle was purchased by the LR of respondent on 5/02/01 as it is clear from Ex.RW2/1. He further argued that ration card is also after 1994 and therefore on these documents, the adverse possession of respondent cannot be proved.
30. Admittedly RW1 marked the photocopy of Khasra Girdawari of the year 197778 and 197879 as Ex.RW1/1 and Ex.RW1/3. The translation copies of same are Ex.RW1/2 and Ex.RW1/4 respectively. It is not disputed that RW3 who was summoned from Revenue Department did not produce the original of Ex.RW1/1 and Ex.RW1/3. RW3 claimed that as per his knowledge Form P5 is to be filled by the 'Patwari' on the basis of possession over land but after 1985, such Forms are not filled by the order of Hon'ble High Court and therefore the name of respondent no.1 is not shown in Khasra Girdawari of the year 1995. RW1 claimed the ownership of respondent no.1 on basis of Khasra Girdawari of the year 197778 and 197879 i.e. much prior to 1985 therefore its original must be in the record alongwtih Form P5 but RW1 has not summoned the said record from the concerned department to prove the E321/06 Page 24 of 29 photocopy of Ex.RW1/1 and Ex.RW1/3. Hon'ble High Court in Sudhir Engn. Com. Vs. M/s Nitco Roadways Ltd. 1995 II AD Delhi 189 held that neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit. In view of above discussion, LR of respondent no.1 has failed to prove Khasra Girdawari of the year 197778 and 197879 as Ex.RW1/1 and Ex.RW1/3 respectively as mere marking of documents as an exhibit does not prove the document hence Ex RW1/1 & RW1/3 cannot be relied upon.
31. Further it is not disputed fact that the ration card Ex.RW1/5 is in name of RW1 but the date of issuance of same is 9/02/98 i.e. much after the letting out of the tenanted premises. Further RW2 produced the registration certificate of motor cycle bearing no.DL 1SF 5883 Ex.RW2/1 which suggests that motor cycle was originally purchased by Mohinder Pal on 7/09/93 and RW1 is the second owner of the above said motor cycle which was transferred in his name on 5/02/01 vide Ex.RW2/1. The RC of motor cycle Ex.RW1/7 also reveals that the owner of motor cycle is RW1 is having owner serial number as 2 so from Ex.RW1/7 & Ex.RW2/1, it is clear that motor cycle was purchased by the Praveen Kumar in the year 2001 much after the letting out of the E321/06 Page 25 of 29 respondents.
32. In view of aforesaid discussion, I am of considered opinion that petitioner established landlord tenant relationship between him and deceased respondents whereas LR of respondent no.1 has failed to prove the adverse possession of respondent No. 1. Accordingly issue no.(i) stands proved.
33. PW1 claimed that respondent were paying the rent upto 10/11/96 @ Rs. 3200 p.m excluding electricity charges thereafter they failed to pay the rent despite her requests so she sent a legal demand notice dt.30/11/2000 Ex.PW1/14 through registered cover as well as UPC upon both the respondents. The postal receipt sending registered cover containing notice to respondent no.1 & respondent no.2 are Ex.PW1/7 & Ex.PW1/8 respectively and receipt of both the notices is Ex.PW1/9. PW1 also claimed that registered covers containing notice of respondent no.1 Ex.PW1/10 & respondent no.2 Ex.PW1/11 received back with report of postman 'refused' dt.02/12/2000. Same are Ex.PW1/12 & Ex.PW1/13 respectively.
34. Respondents in their written statement denied the service of legal demand notice dt.30/11/2000 Ex.PW1/14. They also stated that they have not refused to accept the same and if there is any report of refusal given by the postman on registered envelop then same is false and manipulated by the E321/06 Page 26 of 29 petitioner in collusion with the postman. RW1, the LR of respondent no.1 has not deposed anything in his affidavit Ex.RW1/A about manipulation of report by the postman on registered envelop. Further no evidence has been led by the respondents to prove that petitioner has manipulated the report of postman 'refused' Ex.PW1/12 & Ex.PW1/13. PW1 also proved that she sent the legal demand notice not only through registered cover but also through UPC upon both the respondents. Admittedly legal demand notice sent by UPC to respondents has not been received back. In Kamal Raj Sadana Vs. D.D. Saigal 1995 RLR 406 Hon'ble High Court held that if notice of demand are sent by registered post and UPC and former are refused or avoiding service and those sent through UPC do not get returned then it is sufficient service as per Section 114 Indian Evidence Act and Section 27 of General Clause Act. In view of above discussion, I am of considered opinion that legal demand notice dt.30/11/2000 Ex.PW1/14 has been duly served upon both the respondents accordingly issue no.(ii) also stands satisfied.
35. PW1 deposed that respondents paid the monthly rent @ Rs.3200/ upto 10/11/96 thereafter they had not paid any rent despite her requests. Respondents claimed in their written statement that they never remained the tenants in the suit property under the petitioner at any point of time. So the E321/06 Page 27 of 29 question of paying the alleged rent @ Rs.3200/p.m. does not arise at all as they are in adverse possession of the property for the last 35 years. In view of finding recorded in issue no.(i), respondents failed to prove their adverse possession in the property whereas petitioner has established that there is relationship of landlord and tenant between petitioner and respondents. Under these circumstances, it is clear that no rent has been paid to the petitioner by the respondents meaning thereby that respondents had not paid the rent w.e.f. 20/11/96 as claimed by the petitioner in her legal demand notice Ex.PW1/14. In view of this discussion, it is clear that respondents were in existence of arrears of rent legally recoverable on the date of service of demand notice accordingly issue no.(iii) also stands proved.
36. PW1 deposed that respondents/tenants failed to pay the arrears of rent despite service of legal demand notice Ex.PW1/14 on 02/12/2000. Admittedly no payment of rent was paid by the respondents to the petitioner after legal notice Ex.PW1/14. The present petition has been filed by the petitioner on 07/02/01 meaning thereby respondents had failed to pay/tender the entire legally recoverable arrears of rent within stipulated period of two months from date of service of legal demand notice accordingly issue no.(iv) also stands satisfied.
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37. In view of aforesaid discussion, I hold that petition u/s 14 (1) (a) DRC Act deserved to be allowed. Ordered accordingly.
38. It is on record that order for payment of rent u/s 15(1) DRC Act has not been passed and same was deferred vide order dt..07/12/2002. Since petitioner has established that the rate of rent of tenanted premises was Rs.3200/p.m. and same was not being paid by the respondents since 20/11/96. Admittedly present petition has been filed by petitioner on 07/02/2001 so petitioner is entitled for arrears of rent preceding to three years from the date of filling of petition i.e. 07/02/1998. Accordingly LR of respondent No.1 is hereby directed to pay the arrears of rent w.e.f. 07/12/1998 @ Rs.3200/p.m. till date within one month reckoned from this day.
(Announced in the open (RAVINDER SINGH)
court on 09/09/2011) ADDL. RENT CONTROLLER(E)
KKD COURT, DELHI.
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