Delhi District Court
Parmananda Paul vs Anju Sharma on 3 September, 2015
IN THE COURT OF Ms. REKHA RANI
DISTRICT & SESSIONS JUDGE / RCT (WEST) : DELHI
RCT No. 22/2015
U/s. 38 of the Delhi Rent Control Act, 1958
Unique ID No. 02401C0327202015
Parmananda Paul
S/o. Sh. Sukhendu Bimal Paul
R/o. 4/19, Second Floor,
West Patel Nagar,
New Delhi - 110008. . . . . Appellant
versus
Anju Sharma
W/o. Sh. Rajesh Gandhi
R/o. 602, Victory Cooperative Housing Society
Subhash Road, Neat I Flex Building
Victory Parley East
Mumbai. . . . . Respondent
Date of institution : 30.06.2015
Judgment Reserved on : 31.08.2015
Date of pronouncement : 03.09.2015
JUDGMENT
1. Vide the instant appeal under Section 38 of Delhi Rent Control Act, 1958 (in short, 'the Act'), the appellant has assailed the impugned order dated 21.05.2015 passed by Shri Naveen Kumar Kashyap, ld. ARC (West) in Eviction Petition bearing No. E26/13 under Section 14(1)(a)&(j) of the Act, vide which, RCT No. 22/15 Parmananda Paul vs. Anju Sharma Page1of11 respondent/appellant herein was directed to pay rent to the petitioner/respondent herein or deposit in Court @ Rs.1,980/ per month (which was last admitted amount paid by him qua the suit premises on the strength of admitted document dated 01.03.1997) w.e.f. 05.03.2010 (upto three years from the date of filing of eviction petition) till the date of passing of the order within one month and to continue to pay or deposit the future rent at the same rate by 15 th of each succeeding English calendar month.
2. Trial Court record was requisitioned, received and perused. I have heard ld. counsel for both sides.
3. It is submitted on behalf of the appellant that he has become owner by virtue of his long continuous possession adverse to the licensor/ owner Yogesh Nijhawan and that respondent is trying to set up false claim of ownership to the suit property on the basis of forged and baseless documents, in absence of relationship of landlord and tenant between the parties, direction given to the appellant vide the impugned order to pay rent to the respondent suffers from material illegality.
4. In his application filed before the ld. ARC (West) under Section 151 CPC dated 04.03.2014, the respondent/appellant herein pleaded that he was inducted in the said premises as Licensee by virtue of License Deed dated 01.08.1992 duly executed by Sh. Yogesh Kumar Nijhawan, who is exclusive owner of licensed RCT No. 22/15 Parmananda Paul vs. Anju Sharma Page2of11 property. It was further pleaded that the last license deed was executed on 01.03.1997, which expired on 31.01.1998 and after expiry of license deed dated 01.03.1997, the respondent/appellant herein claimed that he had become owner by way of adverse possession. It was further pleaded that Sh. Yogesh Kumar Nijhawan was unmarried and died issueless. It is also alleged that petitioner / respondent herein was claiming ownership qua the suit premises on the basis of false and fabricated documents. Ld. ARC (West) adjudicated on the said application under Section 151 CPC dated 04.03.2014 filed by the respondent/appellant herein as well as on Section 15(1) of the Act by the impugned order.
5. In para 18 (a) of the eviction petition, it is pleaded that the premises in question was leased by L&DO in favour of Sh. Ram Nath Nijhawan, son of Sh. Jessa Ram by lease deed dated 29.04.1960 vide registration No. 284, Addl. Book No.1, Vol. 36 on pages 8283 on 18.08.1960 and that Sh. Ram Nath Nijhawan expired on 13.03.1965 and was succeeded by his wife Smt. Basanti Nijhawan, who also expired on 09.02.1992. Further it is pleaded that Sh. Ram Nath Nijhawan and Smt.Basanti Nijhawan were survived by Sh. Yogesh Kumar Nijhawan, Mrs. Suraksha Malik, Mrs. Sanjokta Vij and Ashok Kumar Nijhawan. Qua Ashok Kumar Nijhawan, it was pleaded that he was not traceable since 1972 and therefore, is deemed to have expired. Sh.Yogesh Kumar Nijhawan is stated to have died unmarried and issueless on 17.12.1998. It is further pleaded that Smt. Sanjokta Vij executed relinquishment deed dated 26.03.2002 RCT No. 22/15 Parmananda Paul vs. Anju Sharma Page3of11 registered vide registration No. 8047, Addl. Book No. 1, Vol. No. 10299 on pages 148155 on 27.05.2002 in favour of Smt. Suraksha Malik and Smt. Suraksha Malik sold the property by virtue of registered Agreement to Sell, registered Will, registered Special Power of Attorney, registered General Power of Attorney and a receipt admitting payment of Rs. 10,39,500/ and also handed over possession of the property to the respondent herein and further that the respondent herein served legal notices dated 27.07.2009 and 21.11.2012 on the appellant herein claiming arrears of rent and also intimating that respondent herein had become owner landlady of the premises in question.
6. To substantiate her claim that she has legally derived title to the suit property through Suraksha Malik, respondent has placed on record certified copy of letter of Ministry of Urban Development, L&DO bearing No. L&DO/PSIII/1443 dated 13.10.04 vide which Ms. Suraksha Malik was informed that subsequent upon death of Ram Nath Nijhawan, lease hold rights in respect of the suit property were substituted in her name.
7. In Para 18 (5) of the petition, it is pleaded that subsequent to purchase of suit property from Suraksha Malik and receipt of proprietary possession of the suit property, she served legal notice dated 27.07.2009 and 21.11.2012 upon the appellant indicating that she has become owner / landlady of the suit property claiming arrears of rent. In corresponding para 18 (5) of the written RCT No. 22/15 Parmananda Paul vs. Anju Sharma Page4of11 statement, appellant has stated that he replied to the legal notice refusing to acknowledge the respondent as his landlady as her claim was illegal and based on forged and fabricated documents.
8. It may be a question of fact which need adjudication by trial by giving opportunity to both sides to substantiate their respective cases by way of evidence as to whether the respondent has become owner/landlady in respect of the suit property having purchased the same from Suraksha Malik. At the same time, it cannot be ignored that it is the case of appellant himself that he was inducted in the suit property as licensee by Yogesh Nijhawan vide license deed dated 01.05.1995, copy whereof is placed on record. It is the case of appellant himself that Yogesh Nijhawan was unmarried and died issueless on 17.12.1998. A careful perusal of license deed dated 01.05.1995 shows that its terms and conditions are akin to that of lease deed and in sentence 12 of first paragraph of the said license deed, Yogesh Kumar Nijhawan, son of Ram Nath Nijhawan has described himself as "owner/landlord " and in sentence 15 of the same paragraph, there is mention of "lease".
Similarly, in license deed dated 01.03.1997 in sentence 12 of first paragraph of the said document termed as licence deed, Yogesh Kumar Nijhawan described himself as "owner / landlord" and vide sentence 15 of said paragraph, he granted "lease" to the appellant in respect of the suit property.
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9. In this respect, it is quite relevant to refer to admission of appellant which is contained in his reply dated 26.12.2012 to the legal notice sent to him by the respondent which is as under : "... My client become a tenant under the landlordship of one Sh. Yogesh Kumar Nijhawan, s/o late Sh. Ram Nath Nijhawan and Smt. Basanti Nijhawan, r/o 4/18, West Patel Nagar, New Delhi in 1992.
Ever since taking the premises on rent from its landlord my client has all along taken necessary steps to maintain and upkeep the portion under his occupation.
My client states that he enjoyed good cordial relationship with the landlord Sh. Yogesh Kuman Nijhawan and besides regularly paying rent to Sh. Nijhawan, he had also been taking care of him during his illness etc as there was no one to look after him... "
10. Written submissions were also filed on behalf of the respondent. It is submitted that the appellant nowhere in his replies dated 27.08.2009 and 26.12.2012 to legal notices dated 27.07.2009 and 21.11.2012 respectively claimed ownership by way of adverse possession and that it is for the first time in his WS that he claimed the said title of ownership by way of adverse possession.
(i). Reliance is placed upon the judgment reported as Mahinder Pal Singh vs. Ali Hussain Khan 187 (2012) Delhi Law Times 379 wherein defendant had nowhere stated that his possession had been hostile to the plaintiff who was true and legal owner of the suit property.
RCT No. 22/15 Parmananda Paul vs. Anju Sharma Page6of11 Ld. counsel has stated that even in the present case, it is for the first time, in his WS, the respondent/ appellant herein claimes to have acquired title to the premises in question by way of adverse possession whereas he is silent about the said claim in his replies dated 27.08.2009 and 26.12.2012 to the legal notices dated 27.07.2009 and 21.11.2012 and hence, the same is baseless as held in the cited judgment.
(ii). Ld. counsel for respondent has further relied on the judgment reported as Srinath Singh & Anr. vs. Kali Bhawani Prasad & Anr. AIR 1972 Patna 138 (V 59 C 34) to contend that possession of the tenant is possession of the landlord even if the landlord is a trespasser.
(iii). Ld. counsel further relied on Balasubramania Nadalvar vs. Saraboli Gounder AIR 1973 Madras 305 (V 60 C 95) to contend that a tenant, in order to claim title by adverse possession in himself must first establish that he had surrendered the tenancy to the landlord; that it is not open to him to deny the title of the landlord until he proves the surrender and that no adverse title is born of merely continuing in possession.
(iv). Ld. counsel has also relied upon the judgment reported as Chandrika Prasada vs. Bombay Baroda & Central India Railway RCT No. 22/15 Parmananda Paul vs. Anju Sharma Page7of11 Company AIR 1935 Privy Council 59 to contend that a tenant cannot dispute his lessors' title so long as he remains in possession under an agreement which he has made with them.
(v). Ld. counsel further relied upon the judgment reported as Thakur Kishan Singh (Dead) vs. Arvind Kumar (1994) 6 Supreme Court Cases 591 to contend that that possession of a coowner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.
(vi). Ld. counsel has further relied on the judgment reported as Badri Dass & Anr. vs. Mahabir Pershad ILR (1976) II Delhi to contend that on determination of a lease, it is the duty of the lessee to deliver up possession of the demised premises to the lessor. If the lessee or a sublessee under him continues in possession even after the determination of the lease, the landlord undoubtedly has the right to eject him forthwith; but if he does not, and there is neither assent nor dissent on his part to the continuance of occupation of such person, the latter becomes in the language of English law a tenant on sufferance who has no lawful title to the land but holds it merely through the laches of the landlord.
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(vii). Ld. counsel further relied on the judgment reported as Mohan Lal (deceased) through his LRs Kachru & Ors. vs. Mira Abdul Gaffar & Anr. AIR 1996 Supreme Court 910 to contend that having come into possession lawfully under lease/ license agreement, the appellant must disclaim his right thereunder and plead & prove assertion of his independent hostile adverse possession to the knowledge of the lessor.
11. I have carefully applied my mind to the judgments mentioned above.
12. In case titled Gopal Chandra Das & Ors. Vs. Satya Bhanu Ghoshal & Ors, AIR 1926 Calcutta 634, it was observed that : "the mere assertion of such right by an admitted tenant would not create any right superior to that of his tenancy even though followed by possession for over 12 years. On behalf of the appellants my attention has been drawn to a decision of the Madras High Court in Rajah of Venkatagiri v. Mukku Narasaya (2). At page 9 it is stated : so far as this Presidency is concerned, it would seem to be well settled that a person who has lawfully come into possession as tenant from year to year or a term of years cannot be setting up, however notoriously, during, during the continuance of such relation, any title adverse to that of the landlord inconsistent with the legal relation between them, acquire, by limitation, title as owner or any other title inconsistent with that under which he was let into possession".
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13. In case titled Tulsiram Tukaram vs. K. L. Pande & Ors, AIR 1956 Nagpur 11 (Vol. 43, C. 3Jan), it was observed that : "the rule is well established that so long as the relationship of a landlord and a tenant subsist, the tenant cannot set up any title by adverse possession however notoriously he may proclaim title in himself and deny the title of the landlord. That the landlord takes no steps to contest the tentant's hostile assertion improves in no way his position: 'Karimullakhan v. Bhanu Pratapsingh', AIR 1949 Nag 265 at p. 269 (L); Seshamma 'Shettati v. Chickaya Hegade', 25 Mad 507 at p. 511 (M); 'Gopal Chandra v. Satya Bhanu', AIR 1920 Cal 634 at p. 635 (N) and ' Bejoy Chand Mahatab v. Grenada Haldar', 32 Cal WN 720 (O).
The relationship between a licensor and a licensee is analogous to that between a lessor and a lessee. See - Clark v. Adie', (1877) 2 AC 423 at pp 43536 (P) and 'Doe v. Baytup', (1835) 111 ER 384 (Q)".
14. Accordingly, it is primafacie established that appellant was inducted in the premises as tenant admittedly @ of Rs.1980/ per month, although, said payment is termed as license fee by the appellant. As such direction of ld. ARC (West) to the appellant to pay to the respondent or deposit in Court Rs. 1980/ per month for the period mentioned therein cannot be faulted. Appeal bearing RCT No. 22/2015 is accordingly dismissed.
RCT No. 22/15 Parmananda Paul vs. Anju Sharma Page10of11 Trial Court Record be sent back with copy of this judgment. Parties are directed to appear before the Ld. Trial Court on 07.09.2015.
File be consigned to Record Room.
Announced in Open Court ( Rekha Rani )
today this the 3rd day of District & Sessions Judge /
September, 2015 RCT (West)
Tis Hazari Courts/Delhi
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