Delhi District Court
Shri Shyam Shankar vs Shri Vijay Pal Singh on 30 May, 2017
IN THE COURT OF SH. SUDHANSHU KAUSHIK, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER, SHAHDARA,
KARKARDOOMA COURTS, DELHI
Date of institution : 14.01.2016
Arguments on leave to defend heard on: 16.05.2017
Date of Judgment : 30.05.2017
RC/ARC No.- 877/16
In the matter of :-
Shri Shyam Shankar
S/o Sh. Chander Pal Mishra,
R/o House No. A-319, New Seemapuri,
Delhi- 110095
....... Petitioner
VERSUS
1. Shri Vijay Pal Singh
S/o Shri Hanumant Singh
2. Smt. Sarita
W/o Shri Vijay Pal Singh
Both R/o A- 319, 2nd Floor,
New Seemapuri, Delhi- 110095
....... Respondents
ORDER
By this order, I am deciding the application under Section 25-B of the Delhi Rent Control Act (hereinafter referred to as the 'DRC Act'), filed by respondent/tenant praying therein that he may be allowed to contest the eviction petition filed under Section 14 (1)(e) read with Section 25-B of DRC Act by the petitioner/landlord in respect of one room set on the second floor of property bearing no. A-319, New Seemapuri, Delhi- 110095 as shown in red in the site plan (hereinafter referred to as the 'tenanted premises').
RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 1 of 13 pages Facts stated in eviction petition
2. It is the case of petitioner that around ten years back, he inducted Vijay Pal Singh and his wife Sarita (impleaded as respondent no. 1 & 2 respectively) as tenants in the tenanted premises. The tenanted premises were let out for residential purpose on an oral understanding and there was no written rent agreement. Subsequently, on 03.05.2013, parties decided to incorporate the terms of tenancy in a written rent agreement wherein the rate of rent was fixed at Rs. 2,000/- (Rupees Two Thousand only) per month and the term of tenancy was fixed at 12 months. Petitioner terminated the lease by issuing a legal notice dated 26.10.2015 and called upon the respondents to hand over the possession of the tenanted premises but they failed to do so.
3. Petitioner has sought eviction under Section 14(1)(e) of DRC Act mentioning that the tenanted premises is required for accommodating his expanding family. The petition contains the description of the property as well as the details of the family of petitioner. The property is stated to be measuring around 22 ½ sq. yards consisting of ground floor and two floors above it. The first floor and the ground floor of the property are stated to be in occupation of different tenants, who have assured the petitioner that they would be shortly vacating their respective portions. The family of petitioner consists of his wife, two married sons and their wives, four grand-children and an un-married son. It has been stated that the petitioner alongwith his wife and un-married son is residing on the first floor of the property while the two married sons are residing separately. Petitioner has claimed that he plans to solemnize the marriage of his un-married son and therefore, additional accommodation is required. Besides this, it has been stated that the two sons alongwith their family frequently visit the house of petitioner and the existing accommodation is insufficient to accommodate them. On these set of averments, prayer for eviction of the RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 2 of 13 pages respondents has been made.
Grounds raised in the application seeking Leave to Defend
4. Respondents contested the claim by filing leave to contest. Leave to contest has been sought primarily on two grounds; (i) that petitioner is not the owner of suit property as the respondent no. 1 has purchased the property from him on 10.05.2001 vide documents including a GPA, agreement to sell, receipt and will; (ii) that the petitioner has concealed material facts by not disclosing the actual accommodation in his possession. Besides these two grounds, no other ground was taken in the leave to contest.
5. Petitioner filed replication and respondents filed counter-reply to the replication.
Arguments
6. Rival submissions advanced at bar have been heard and record perused.
7. Counsel for the respondent, has contended that the relationship of landlord and tenant does not exist and therefore, the relief claimed cannot be granted. He has challenged the rent agreement mentioning that the same is not authentic. It has been argued by him that petitioner has forged the rent agreement to bring his case under the provisions of Delhi Rent Control Act. He mentioned that on the basis of the documents executed by the petitioner, respondent no. 1 became the owner of the tenanted premises. He has argued that the question of ownership cannot be decided by this Court and the only remedy available with the petitioner is to approach a civil court where the respective title of the parties would be determined. He mentioned that the petitioner is already occupying sufficient accommodation and the projected need is not bona fide. On the force of these submissions, counsel has prayed that leave to contest should be granted as RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 3 of 13 pages there are various triable issues.
8. On the other hand, counsel for the petitioner has argued that respondents have failed to raise any triable issue. He contended that the application seeking leave to defend does not disclose even a single triable issue which may dis-entitle the petitioner to get an order of eviction under Section 14(1)(e) of the Act. He mentioned that respondents have forged certain documents to raise a false claim about the ownership of tenanted premises. He argued that the documents relied on by the respondents are unregistered and they do not confer title on them. He mentioned that respondents have vaguely denied the contentions of the petition and there is no triable issue. He argued that the concept of bona fide requirement, needs a practical approach and the genuine need of the landlord should not be ignored. He submitted that petitioner's wish to reside alongwith his family cannot be termed as a fanciful desire. He has prayed for the dismissal of the application seeking leave to defend.
Brief reasons for the decision
9. I have gone through the record in the light of respective arguments. The criteria for finding whether the leave to contest should be granted or refused has been culled out by The Supreme Court in Precision Steel & Engineering Works and another vs. Prem Deva Niranjan Deva Tayal, AIR 1982 SC 1518. The para 22 of the judgment elaborates the principle for granting the leave to contest. It states as follows:-
"22. What then follows. The Controller has to confine himself indisputably to the condition prescribed for exercise of jurisdiction in Sub-section (5) of Section 25B. In other words, he must confine himself to the affidavit filed by the tenant. If the affidavit discloses such facts-no proof is needed at the stage, which would disentitle the plaintiff from seeking possession, the mere disclosure of such facts RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 4 of 13 pages must be held sufficient to grant 'leave because the statute says on disclosure of such facts the Controller shall grant leave'. It is difficult to be exhaustive as to what such facts could be but ordinarily when an action is brought under Section 14(1) proviso (e) of the Act whereby the landlord seeks to recover possession on the ground of bona fide personal requirement if the tenant alleges such facts as that the landlord has other accommodation in his possession; that the landlord has in his possession accommodation which is sufficient for him; that the conduct of the landlord discloses avarice for increasing rent by threatening eviction; that the landlord has been letting out some other premises at enhanced rent without any attempt at occupying the same or using it for himself; that the dependents of the landlord for whose benefit also possession is sought are not persons to whom in eye of law the landlord was bound to provide accommodation; that the past conduct of the landlord is such as would disentitle him to the relief of possession; that the landlord who claims possession for his personal requirement has not cared to approach the Court in person though he could have without the slightest inconvenience approached in person and with a view to shielding himself from cross-examination prosecutes litigation through an agent called a constituted attorney. These and several other relevant but inexhaustible facts when disclosed should ordinarily be deemed to be sufficient to grant leave."
10. In the case of Sarwan Dass Bange vs. Ram Prakash MANU/DE/0204/2010, High Court of Delhi noted as follows:-
"7. The Controller has not discussed as to how the pleas raised by the respondent/tenant in the application for leave to defend are such RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 5 of 13 pages which if established by adducing evidence would disentitle the petitioner/landlord of an order of eviction under Section 14(1)(e) of the Act. Ordinarily, when a tenant approaches an advocate for drafting a leave to defend application, the advocate, using his legal acumen would dispute each and every plea of the landlord in the eviction petition. However, merely because the tenant so disputes and controverts the pleas of the landlord does not imply that the provision of summary procedure introduced in the Act with respect to ground of eviction on the ground of requirement is to be set at naught. The Controller is required to sift/comb through the application for leave to defend and the affidavit filed therewith and to see whether the tenant has given any facts/particulars which require to be established by evidence and which if established would disentitle the landlord from an order of eviction. The test is not of the tenant having controverted/denied the claim of the landlord and thus disputed questions of fact arising; the test is to examine the pleas of facts and then to determine the impact thereof."
11. In Deepak Gupta vs. Sushma Aggarwal, 2013 202 DLT 121, High Court of Delhi analysed the scope of the observations made in Precision Steels (supra) case and held as follows:-
"24. From the mere reading of the afore mentioned illuminating observations of the Supreme Court in the case of Precision Steels (supra), it is apparent that the Controller has a statutory duty to grant the leave to defend if the affidavit discloses the facts which could raise suspicion on the genuineness of the need of the landlord which can in effect disentitle the landlord from recovering the possession on the ground of bonafide requirement. The likelihood of RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 6 of 13 pages success or the failure of the defence is not really determinative of the question as to grant or not grant of the leave to defend but the real question is tenability of the plea which may raise a suspicion on the need of the landlord which may if proved can also lead to disentitlement to the recovery of the possession. Thus, the plea raising a doubt in the mind of the Controller is sufficient to grant the leave. The Controller can also not record the findings on disputed question of the facts by preferring the one set of facts over and above the other. The merits of the pleas raised are not to be gone into at the time of the grant of the leave to defend by going into the complicated questions of fact. For making the enquiry, the affidavit file by the tenant is helpful.
25. The views expressed by the Supreme Court in the case of Charan Dass (supra) and Precision Steel (supra) are holding the field and have been consistently followed by the Supreme Court till recently and also by this court from time to time."
12. The essential ingredients which a landlord/respondent is required to show for the purpose of getting an eviction order on the ground of bona fide need are (i) the respondent is the owner/landlord of the suit premises (ii) the suit premises are required bona fide by the landlord for himself and any of his family members dependent upon him (iii) the landlord or such other family members has no other reasonable suitable accommodation. It needs to be analysed in the light of above legal position whether the respondents are entitled for leave to defend.
13. The main thrust of the arguments of respondents have been that the relationship of landlord and tenant does not exist. Respondent no. 1 has denied the ownership of the petitioner and claimed himself to be the owner of tenanted premises. It is settled law that in a petition under Section 14 (1) (e) DRC Act, the RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 7 of 13 pages landlord is not required to prove absolute ownership as required under Transfer of Property Act. In rent control legislation, the landlord can be said to be owner, if he is entitled in his own legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain, control, hold and use the premises for himself. It is also a settled proposition that a tenant is estopped from denying the ownership of landlord. Section 116 of the Indian Evidence Act puts and embargo on a tenant of immovable property, during the continuance of his tenancy, to deny, the title of his landlord at the beginning of tenancy. So, a tenant, once inducted as a tenant by landlord, cannot deny his title.
14. The property where the tenanted premises is situated was allotted to the petitioner by Delhi Development Authority (JJ Cell). Petitioner has placed on record the possession slip dated 09.11.1976 whereby the possession of the property was handed over to him. The stand of the respondent no. 1 that he purchased the property from the petitioner leaves no scope for doubt that he has admitted the ownership of the petitioner. Now, coming to the aspect of the effect of the documents on the basis of which the respondent no. 1 claims to be the owner of tenanted premises. It is the case of respondent no. 1 that on 10.05.2001, petitioner executed in his favour an Agreement to Sell, GPA, Will and Receipt in respect of tenanted premises. On the force of these documents, he claims himself to be the owner of tenanted premises. This claim of respondent no. 1 appears to have been taken on erroneous interpretation and it does not hold ground. The law is well settled that unregistered documents do not confer the title of the property.
15. The effect of an unregistered agreement to sell has been discussed by the High Court of Delhi in the judgment reported as Sunil Kapoor Vs. Himmat Singh and others, 167 (2010) DLT 806. In this case, the tenant sued the landlord for specific performance of an unregistered agreement to sell. The landlord thereafter filed a suit for the ejectment of tenant. The tenant's plea that RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 8 of 13 pages he could not be ejected in view of the agreement to sell was negativied by observing, "A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the respondents/plaintiffs are found to have agreed to sell the property, the petitioner/defendant would not get any right to occupy the property as purchased. This court is Jeevan Das Rawal Vs. Narain Das, AIR 1981 Delhi 291 has held that infact no right enure to the agreement purchaser, not even after the passing of a decree of specific performance and till conveyance in accordance with law and in pursuance thereof is executant. Thus, in law the petitioner has no right to remain in occupation of the premises or retain the possession".
16. Similar observation has been made in the case of K. V. Narayan Murti Vs. Thankamma Sebastian RC Revision No. 48/2005 (Date of decision 19.05.2005), decided by The Devision Bench of Kerala High Court. It was held that an agreement to sell does not invest any title in the tenant; nor does it divest the title of the landlord. The court observed that title would pass to the proposed transferee only on execution of the sale deed. It was categorically held in this judgment that the agreement to sell by itself would not terminate landlord-tenant relationship and even if a suit for specific performance filed by the tenant- transferee is pending, that by itself would not be a ground to oust the jurisdiction of Rent Controller. It was held that so long as the tenant has not shed his character as tenant, he cannot take shelter under the agreement for sale and contend that the Rent Controller has no jurisdiction.
17. Counsel for respondents has tried to build an argument that respondents are entitled to the benefit under Section 53A of the Transfer of Property Act. I find no merit in this line of argument. The respondent no. 1 cannot take shield under Section 53A of the Transfer of Property Act. The possession of respondent no. 1 can be either as a tenant or as an agreement purchaser. If the RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 9 of 13 pages possession is as a tenant, then the tenancy has been determined and the respondent has to go out of the possession. On the contrary, if the possession is as the agreement purchaser, an agreement purchaser can get such protection only under Section 53A of Transfer of Property Act. The benefit of Section 53A of Transfer of Property Act is not available to the respondent no. 1 for the reason that the agreement under Section 17 (1A) of the Registration Act being required to be compulsorily registered while the agreement claimed by the respondent no.1 has not been registered. Therefore, the legal position that emerges is that the status of respondent no. 1 remained as tenant and did not change to as that of purchaser. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. The question of an agreement to sell the property to a tenant becomes irrelevant in a suit for ejectment. Agreement to sell does not invest any title in the tenant nor does it divest the title of the landlord. Consequently, the contention of respondent no. 1 that he is no longer a tenant is liable to be rejected. The right of respondent no. 1, if any, as an agreement purchaser without the benefit of Section 53A cannot intertwined with the ejectment of respondent no. 1 from the tenanted premises. It is further noted that although the agreement to sell was executed on 10.05.2001, but till date, respondent no. 1 has not initiated any action for enforcing the said agreement and the mandatory period of three years for filing a suit for specific performance has already elapsed.
18. Apart from the agreement to sell, respondent no. 1 has also relied upon a Will dated 10.05.2001 and a GPA of the even date purportedly executed by the petitioner in his favour. These two documents are also of no consequence and they do not confer title over the property. In the case titled as Suraj Lamps & Industries Pvt. Ltd. Vs. State of Haryana & Anr. AIR 2012 SC 206 the Hon'ble Supreme Court, while discussing the scope of Power of Attorney, has observed, RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 10 of 13 pages "13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1A and Section 2 of Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee......".
19. A Power of Attorney can be revoked or terminated as enumerated under Section 201 to 203 of Contract Act. The GPA dated 10.05.2001 does not record or recognize an interest of respondent no. 1 in the tenanted premises so as to make it irrevocable under Section 202 of Contract Act. The said GPA merely authorizes respondent no. 1 as an agent to do certain acts in the name or on behalf of the petitioner. Thus, GPA was revocable and terminable. It does not confer or transfer the title of the tenanted premises. Similarly, the Will dated 10.05.2001 purportedly executed by the petitioner in favour of respondent no. 1 is of no consequence as the petitioner is alive. A 'Will' is a posthumous disposition of the estate of the testator directing distribution of his estate on his death. The two essential characteristics of a Will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the life-time of the testator. The Will also does not confer any title on the respondent no. 1.
20. In view of the discussion made in the aforestated paras, it becomes crystal clear that respondents are tenants in the tenanted premises. It has nowhere been explained by them how they came into the possession of the tenanted premises. They came in possession only through the petitioner. In such circumstances, they cannot be allowed to challenge the title of petitioner. The rent agreement dated 03.05.2013 contains an admission of the respondents that they RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 11 of 13 pages are occupying the tenanted premises in the capacity of tenants. The respondent's defence has been of mere denial which perhaps is no defence. The simple denial of landlord-tenant relationship by the respondents does not advance their cause, more so, when there is material to show that landlord-tenant relationship exists between the parties. The vague plea of respondents that petitioner's projected need is not bonafide or that he has concealed material facts cannot be entertained. Respondents have raised a bald plea that petitioner is already possessing more than sufficient accommodation and he has not disclosed the actual accommodation available with him but neither details of the accommodation have been furnished nor any other material has been produced which may prima facie raise a triable issue. A bald plea, without anything more, particularly when the nature of the plea in defence is such that, if true, it would lead a trail of evidence to establish its existence, and which would be easily available for everyone to see and pick up, cannot be accepted as prima facie disclosing a triable issue. Reliance in this regard can be placed upon the judgment in Mukesh Prasad Vs. Rishi Prakash, 2010 (174) DLT 74.
21. I have reached the conclusion that the arguments raised by the respondents are bald averments bereft of material factual details. The respondents have failed to raise any triable issue which requires a trial for which leave to defend may be granted. On the other hand, the petitioner has established his case for obtaining an eviction order in respect of tenanted premises. The petitioner's need to reside alongwith his family cannot be considered to be a fanciful desire. The property where the tenanted premises is situated is only measuring around 22½ sq. yards. The size of the family of petitioner is expanding and definitely after the marriage of his third son, additional accommodation would be required. The expectation of the petitioner to accommodate the other two married sons and their family during their visits cannot be termed as unreasonable. At this age, it is RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 12 of 13 pages logical to expect that a person wants to enjoy the company of his family members and his said desire cannot be ignored. In the facts of the present case, the insufficiency of the accommodation which is in possession of the petitioner is manifest on the face of the record.
22. No triable issue has been raised in the application seeking leave to defend. Resultantly, the same is dismissed and the petition is allowed. The respondents are directed to hand over physical vacant possession of the tenanted premises as shown in red colour in the site plan to the petitioner within 6 months.
File be consigned to record room.
Announced in the open court (Sudhanshu Kaushik)
Dated: 30.05.2017 Senior Civil Judge-cum-Rent Controller
(Shahdara) Karkardooma Courts,
Delhi
RC/ARC No. 877/16 Shyam Shankar vs. Vijay Pal Singh & anr. Page 13 of 13 pages